England, although destined to take the lead in research and discovery at

a later period, was in the sixteenth century far behind her continental

neighbours in the field of Science. And with respect to the study and

practice of physic, it seems probable that, until after the foundation

of the College of Physicians, it had not even assumed the character and

dignity of a regular profession; for we find that the very few learned

men in that branch, which the annals of the period can furnish, had

acquired their knowledge in the foreign universities.

Until the auspicious period of the Reformation, various circumstances

contributed to retard the progress of medical science; the first and

most considerable of which may be traced to the many monastic

establishments[62] with which the country was infested; the Monks are

known to have practised physic very extensively, and when the

superstitious character of these ages is considered, we shall not feel

surprised at the vulgar, and perhaps not the lower order alone, having

preferred, to every other medical assistance, the aid of those who

arrogated to themselves the immediate assistance of heaven in the

preparation and administration of their medicines.

The Alchemists[63] were another, and very numerous class to whom we may

justly refer the temporary degradation of the science of medicine. Like

their lineal descendants, the Empirics of modern times, their attention

was directed to the discovery of an universal specific which should be

equally applicable to every disease; and as presumption is ever

proportionate to incapacity, we need not be surprised that they should

have been eagerly followed by the ignorant of their day, as their

successors are by the vulgar of our own; under such circumstances there

could have been but little encouragement to men of real learning, and as

we find by the recital of the act of 5 _Hen._ 8. c. 6. that there were

but twelve regular Surgeons practising in all London, we may safely

conclude that the number of legitimate physicians must have been

proportionally smaller. The Universities of Oxford and Cambridge had

probably from the time of their foundation conferred degrees in

medicine, but these do not appear to have carried with them any general

privilege or authority; their rights indeed were reserved by the

concluding section of the 3d _Hen._ 8, _c._ 11, but in what those rights

consisted has not been judicially determined, even though the litigation

to which the Act and the subsequent Charter of the College gave rise,

would naturally have produced some decision on this point, had the

extent of those ancient rights ever been legally defined[64]. We shall

not consume any farther time upon this question, for although it might

be a subject of some antiquarian curiosity, it would furnish but little

matter of professional interest, or practical utility. In the present

age the Universities of Oxford and Cambridge are firmly united by a

communion of sentiment and interest to the College of Physicians, and

physicians are rarely admitted as Fellows[65] of this learned body,

unless they have previously graduated in one of the English

Universities, or at Trinity College, Dublin, but even in this latter

case, it is required that the candidate for admission should have been

previously incorporated either into the University of Cambridge or

Oxford. That a distinction founded on such a basis should have excited

an angry and jealous feeling in the excluded party is not extraordinary;

and the authors of the present work hope that they shall stand excused

for offering a few remarks upon a subject which they consider vitally

interwoven with the best interests of the profession. The arguments

which have been so repeatedly urged against the justice, as well as

policy, of the Bye-law[66] which thus excludes all, but the graduates of

an English University, from the honours of the Fellowship, may be easily

refuted, and its salutary tendency, in relation to the interests of the

public, as well as to the dignity of the profession, very satisfactorily

demonstrated. For the complete knowledge of medicine, as a science, all

the collateral lights of natural philosophy and erudition, are required;

while for its successful practice as an art, the physician should

possess those high qualifications of mind, and have received that moral

cultivation which a mere technical education can never bestow. We are

willing to admit that “the curative art cannot be learnt on the

sequestered banks of the Cam or the Isis, as well as amid the distress

and sickness of a great city;” but we assert with equal confidence, that

the liberal pursuits, and wholesome discipline of an English university,

can best prepare the mind for the full and extensive benefits, which the

pupil is afterwards to derive from his professional studies in the

metropolis; and if it be essential to encourage a liberal education

amongst those who are destined to move in the higher walks of physic, we

would ask whether any plan could be derived more likely to ensure our

object, than that fair and honourable reward which is held out by this

unjustly reviled bye-law of the College of Physicians. It has been

urged, that the education of a physician is thus rendered materially and

unnecessarily expensive; and that the delay of twelve years, which are

required for the full completion of the highest medical degree, proves

another great and vexatious hardship;—to all this we reply, that we

should politically resist any measure that had the least tendency to

divest medical education of its pecuniary sacrifices, and to open the

temple to a crowd of needy and half-educated adventurers. Tissot seems

to have entertained the same sentiment, and he observes that, for these

reasons, no person ought to be allowed to study physic in his native

city: the operation of this bye-law will therefore furnish the surest

guarantee of professional respectability, and the College of Physicians

will continue to enroll names distinguished for science and erudition,

men who will cast a lustre on the profession, over which they preside:

let then the practitioner in medicine beware how he attempts to

depreciate the dignity and importance of this ancient institution, or to

deny the rights and privileges to which the corporate body is legally

and morally entitled, for to the College of Physicians, as it regards

the whole profession of physic, we may address the same emphatic words

that Cicero applied to Torquatus with reference to the state, “TIBI,

NULLUM PERICULUM ESSE PERSPICIO, QUOD QUIDEM SEJUNCTUM SIT AB OMNIUM

INTERITU.”

Nor is the College singular or invidious, as may at first sight appear,

in adopting this rule; by far the greater number, if not all, of the

Bishops require a similar qualification for the Church; and the Inns of

Court, though they do not exclude others, grant some indulgence to

members of the University on entering their respective societies, and

remit two years of the usual term of probation to those who have taken

the degree of Master of Arts or Bachelor of Laws previously to their

call to the Bar.

The College of Physicians in London owes its foundation to _Dr. Thomas

Linacre_ of All Soul’s, Oxford, one of the physicians to king _Henry_

the 8th, a man of profound learning and most devotedly attached to his

profession; having studied at Rome, Bologna, and Florence, (then under

the government of _Lorenzo de Medici_, by whom he was encouraged), he

naturally imbibed an admiration of the medical schools with which Italy

then abounded, and appears to have distinguished himself so much both by

his general learning and particular science that he was called to Court

as physician to the king, and entrusted by _Henry_ the 7th both with the

health and education of his son prince _Arthur_.

The practice of Medicine was about that time, as we have before

observed, chiefly engrossed by empirics and monks, who, and especially

the latter, easily obtained licences from the bishops in their several

dioceses, to whom was committed the authority of examining practitioners

in an art of which they could not be competent judges. _Linacre_,

through his interest with Cardinal Wolsey, a man most highly and

honorably distinguished for his munificent encouragement of learning,

obtained in 1518 Letters Patent (_see Appendix_, p. 5,) from _Henry_ the

8th,[67], constituting a Corporate Body of regular Physicians in London,

with peculiar privileges hereafter to be specified. _Linacre_[68]

(though his name is second in the Letters Patent) was elected the first

President of the College, which held its meetings at his house in Knight

Rider Street; he was continued in the office during his life, and

bequeathed his house to the College at his death; he was distinguished

both by his learning and his friendship with learned men, among whom he

enjoyed the commendations of _Erasmus_ and _Melancthon_. He died in

1524, in the sixty-fourth year of his age, and was buried in St. Paul’s,

where a monument was erected to his memory by _Dr. Caius_, one of the

most learned and munificent of his successors. _See Preface to Goodall’s

Proceedings of the College: Biog. Britan.: Aikin’s Biog. Mem. of

Medicine_: & 6 _Aikin’s General Biography_.

As it cannot be uninteresting to trace the progress of a society through

the medium of its principal ornaments, and as the authors owe to _Dr.

Caius_ the foundation of that institution in which they commenced those

joint chemical studies which have indirectly induced their present

undertaking, they do not apologize to the reader for adding a short

notice of his life, and of that of _Dr. Harvey_, another considerable

benefactor to the College of Physicians.

_Dr. John Caius_, _Kaye_, or _Key_, of Gonville-hall, Cambridge,

succeeded _Linacre_ in the Presidency; like him he had travelled in

Italy for his improvement in the study of Medicine, and having resided

in Padua and Bologna, where he took his Doctor’s degree, and was for

some years Greek lecturer, he pursued his travels through Germany and

France. After his return to England, he was called to Court as Physician

to king _Edward_ the 6th; in 1547 he was made a Fellow of the College of

Physicians, the rights and privileges of which he most strenuously

asserted and augmented. In 1557 and 1558 he obtained from queen _Mary_,

with whom he was a favourite, a licence to advance Gonville-hall into a

College, under the name of _Gonville & Caius College_, on the condition

of enlarging the institution at his own expense. Of this college he

accepted the mastership in 1569, and in order that he might devote his

undivided attention to his favourite project, he resigned the Presidency

of the College of Physicians in 1565, and completed his new buildings at

Cambridge in 1570, at an expense which was very considerable in those

days. The mansion of learning, thus raised by his liberality, became the

retreat of his old age, and having resigned the mastership, with a

disinterestedness equalled only by his munificence, he continued to

reside as a Fellow Commoner until the period of his death, which

happened in 1573, in the sixty-third year of his age. The laconic

epitaph on his monument in Caius College Chapel, FUI CAIUS, is well

known. For an account of his many learned works _see Aikin’s Biog.

Memoirs of Medicine: 2 Aikin’s General Biog._ and _Goodall’s Proceedings

of the College_.

_Dr. William Harvey_, of Gonville and Caius College, Cambridge, to whom

we are indebted for the important discovery of the circulation of the

blood, was another ornament and benefactor of the College. Like his

predecessors he visited France, Germany, and Italy, in order to perfect

himself in the science of Medicine; at Padua he studied under the most

celebrated Professors of that University, then at the height of its

reputation, and in the anatomical school of _Fabricius_ caught the first

idea of his great discovery, by attributing their true office to the

valves of the veins, exhibited, but not explained, by his master. From

this circumstance, the envious of his own time and some foreigners to

this day, have attempted to deprive our countryman of the honor of his

invention[69]. In 1602 _Harvey_ took his Doctor’s degree at Padua,

shortly after which he graduated at Cambridge; in 1616 or 1619 he

published his discovery in his Lectures before the College, and like

many others suffered in his practice from the reputation of his

learning, for men would not then believe that the labours of the closet

and dissecting-room were the truest roads to professional skill.

He was however appointed Physician extraordinary to _James_, and

subsequently Physician in ordinary to king _Charles_ the 1st; by the

latter he was highly esteemed and favoured, having been appointed during

the residence of the king at Oxford to the Mastership of Merton College,

vacant by the secession of the Warden, _Dr. Brent_, to the Parliamentary

party; this appointment however, he did not hold long, being in turn

displaced by his predecessor.

Some time about 1652, the College having removed from their ancient

house in Knight Rider Street to one at Amen Corner, _Dr. Harvey_ built

them a library and public hall, which he granted for ever to the

College, with his library and a valuable collection of instruments. _See

1 Stowe’s London_, 131.

In 1654 _Harvey_ was unanimously elected President of the College of

Physicians, but he excused himself on account of his age and

infirmities; such however was his attachment to that body, best evinced

by _donationes inter vivos_, that in 1656 he made over his personal

estate in perpetuity for its use. He died in 1658, in the eightieth year

of his age; his works were published by the College in 1766, in quarto,

to which edition his life is prefixed, to which we refer, as also to

_Aikin’s Biog. Mem. of Med._; _Halleri Bibl. Anat._; _Aikin’s Gen.

Biog._ and the _Preface to Goodall’s Proceedings_.

We should exceed our limits and wander from our purpose if we entered

more fully into the biography of the many celebrated men who have since

graced the College[70]; it is enough for us to have directed the

reader’s attention by the preceding memoirs to the very rapid

improvement which the science of Physic appears to have undergone

immediately after its institution. The profession gained much in

respectability by their incorporation, which afforded a unity of

interest among its legitimate professors, at the same time that it armed

them with extraordinary powers against their opponents: it also gave

additional means to the learned of mutually communicating their

researches and discoveries, at a time when the comparative scarcity of

printed books rendered such intercourse doubly valuable. The dissolution

of the monasteries, and the consequent dispersion of a host of

ecclesiastical empirics, with the destruction of their prejudices and

superstitions, as inconsistent with the progress of liberal science, as

degrading to religious principle, completed the triumph which the

foundation of the College had begun. The consequence is evident.

England, which in the beginning of the sixteenth century had been behind

all the then civilized world in medical knowledge, finds herself in the

commencement of the nineteenth inferior to none in any branch, superior

to most in some, and taking a decided lead in all the ramifications into

which the science of physic and the sister arts have divided themselves.

This effect however was not produced by the College, without some severe

struggles on the part of those who were, or supposed themselves to be,

aggrieved by the extraordinary powers granted to the Corporation by the

Charter of _Henry_ the 8th; it does not appear whether any of these

disputes arose between the granting of the Letters Patent and their

confirmation by the statute 14 and 15 _Hen._ 8. _c._ 5. at least no

cases remain recorded by any sufficient authorities; it is therefore

probable that the College did not attempt any exercise of their new

powers until they had received the sanction of Parliament; even the

king, (and no one will suspect _Henry_ the 8th of any diffidence of

royal prerogative) by using the terms “_quantum in nobis est_,” (see

Charter) seems to have been conscious that the powers of fine and

imprisonment which he professed to grant, _suo jure_, could only become

effective by the ratification of a superior authority.

The restriction of practice to persons examined and licenced by some

supposed competent authority was not new. Sir _Wm. Brown_ in his

Vindication of the College from the imputation and misrepresentation of

their adversary in the case of Dr. _Schomberg_, mentions an Act of

Parliament or Ordinance of the 9th _Hen._ 5. (_see Appendix_, _p._ 1.)

by which the licencing of physicians is confined to the Universities,

and of surgeons to persons duly qualified: and the 3d _Hen._ 8. c. 11.

(_see Appendix_, _p._ 3.) somewhat strangely confers on the Bishop of

London, and in his absence on the Dean of St. Paul’s, the exclusive

power or privilege of licencing physicians and surgeons in the City of

London, and within seven miles in compass. It can scarcely be doubted

that the provisions of this act as relating to physicians, were repealed

by the Act 14 and 15 _Hen._ 8. _c._ 5. confirming the incorporation of

the College, for where a power to do a specific thing is given to two

distinct persons or bodies by separate Acts, it is a general rule that

the last repeals the former, _Quia Leges posteriores Leges priores

contrarias abrogant_; yet it is said that a Bishop of London has within

a few years professed to grant a licence to practise physic in London

and within seven miles thereof. Now, independent of the objection before

mentioned, it is evident, even on the construction of the 3. _Hen._ 8.

_c._ 11. from which alone the power is derivable, that such licence, if

any such were granted, is bad; for the words of the statute are,

“calling to him or them (the Bishop and Dean) four Doctors of Physick,

and for Surgery other expert Persons in that Faculty, and for the first

Examination such as they shall think convenient, and _afterward alway

four of them that have been so approved_:” Now if the Bishop cannot find

four assessors _so approved_, his authority must cease, for he cannot

exercise it without them.

The power of the Archbishop of Canterbury[71] to confer degrees of all

kinds (a relic of Papal usurpation transferred to him by statute 25

_Hen._ 8. _c._ 21) has induced a belief that the Archbishop has a power

of granting licences to practise physic, and several have been granted

accordingly; among others _Wm. Lilly_, the astrologer, was licenced to

practise physic, except in London and within seven miles; for his

diploma, the wording of which is curious, _see the Appendix_. Now though

the Pope may have had the power of granting degrees and licences in

physic, the concluding words of the 14th and 15th _Hen._ 8. confirmed by

1st _Mary_, are sufficient to exclude the authority either of the Pope

or of the Archbishop, “that no person from henceforth be suffered to

exercise or practise in Physic through all England until such time as he

be examined at London by the said President and three of the said

Elects, and to have from the said President or Elects Letters

Testimonials of their approving and examination, except he be a Graduate

of Oxford or Cambridge, which hath accomplished all things for his Form

without any Grace.” Then as it cannot be pretended that the Archbishop’s

licentiate, though he may be a graduate of Oxford or Cambridge, is one

who has accomplished all things for his form (_subaudi_ in physic)

without any grace, it follows that such degree or licence is void as

respects the authority of the College of Physicians.

The provisions of the Act of the 3d _Hen._ 8. could produce no permanent

benefit, and we therefore find within seven years, that the continuance

of the abuses which it was intended to remedy, was made the foundation

of granting its powers to a Corporation better calculated to exercise

them; what these powers are we must now investigate somewhat minutely,

for it is an essential branch of Medical Jurisprudence to regulate and

define the privileges and office of those who are best able to give

effect to its institutions.

It may be necessary to premise that though several subsequent

Charters[72] have been prepared for or offered to the acceptance of the

College of Physicians (as 15 _James_ and 15 _Charles_ 2. for which _see_

Sir _Wm._ _Brown’s_ Vindication, Dr. _Chas. Goodall’s_ Collection, and

other works, most of which are enumerated in _Gough’s_ Topography of

London), yet the Charter and Statute of _Henry_ the 8th is still the

subsisting ground of the rights, privileges, and powers of the

Corporation. By their Charter recited in, and confirmed by the 14th and

15th _Hen._ 8. (_see Appendix_, _p._ 7) _John Chambre_, _Thomas

Linacre_, _Ferdinando de Victoria_,[73] physicians to the king, and

_Nicholas Halsewel_, _John Francis_, and _Robert Yaxley_, physicians,

and the rest of the faculty in and of London, are constituted a

perpetual college or community, with power annually to choose a

President, who is to govern and superintend the College, and all men of

the faculty and their practice (_omnes homines ejusdem facultatis et

negotia eorundem_,) they are to have perpetual succession and a common

seal, with power to hold lands to an amount therein limited (but which

has since been enlarged by other Charters) notwithstanding the statute

of Mortmain. They may sue and be sued by the name of the President and

College or Community of the Faculty of Physic in London (_per nomina

Presidentis et collegii seu communitatis facultatis medicinæ Lond’_);

they may hold meetings (_congregationes licitas et honestas_) and make

bye-laws (_stat’ et ordinationes_) for the good government,

superintendance, and correction (_pro salubri gubernatione, supervisu,

et correctione_) not only of the College but of all persons exercising

the faculty in the city, or within seven miles thereof, (_omnium hominum

eandem facultatem in dicta civitate seu per septem miliaria in circuitu

ejusdem civitatis exercen’_). And it was granted to the College that

none should exercise the faculty of physic within the city, or seven

miles thereof, unless they had been admitted by the President and

College by letters under their common seal, under the penalty of five

pounds (_centum solidorum_) for every month during which such unlicenced

person (_non admissus_) should practice; one half of the said penalty to

the King, and one half to the President and College. The Charter further

directs that the President and College should every year elect four

(censors) who should have the superintendance, correction, and

government of all persons exercising the faculty of medicine in any

manner (_aliquo modo frequentantium et utentium_) in the city, or within

seven miles thereof; with powers to punish for mal-practice (_ac

punitionem eorund’ pro delictis suis in non bene exequendo, faciendo, et

utendo illa_) and with power of superintendance and scrutiny of all

medicines and their administration, provided that the punishment should

be by fines, amercements, imprisonment, and other reasonable modes (_per

fines, amerciamenta, & imprisonamenta, corpor’ suor’ et per alias vias

rationab’ et congruas_.) The Charter then directs (_quantum in nobis

est_) that the president and fellows of the College, and their

successors, should be exempt from and should not be summoned to Assizes,

Juries, Inquests, Attaints, _et aliis recognitionibus_, by the Mayor,

Sheriffs, or Coroners of the City, even by the king’s writ. It was

provided however by the concluding clause that nothing contained in the

Charter should prejudice the City of London.

After the recital of the Charter the Statute proceeds to confirm the

same “in as ample and large manner as may be taken, thought, and

construed,” and directs the election of eight elects, from among whom

the president is to be annually chosen.

The concluding section of this act is important, as it evidently repeals

so much of the 3 _H._ 8. as refers to physicians, enacting, “that no

person from henceforth be suffered to exercise or practise in physic

through _England_[74] until such time as he be examined at London, by

the said President and Three of the said Elects; and to have from the

said President or Elects Letters Testimonials of their approving and

examination, except he be a Graduate of Oxford or Cambridge, which hath

accomplished all Things for his Form without any Grace.”[75]

The next Act which concerns the College is the 32d _Hen._ 8. _c._ 40.

(_see Appendix, p._ 14) by which it is enacted that the President,

Fellows, and Commons of the College, should be discharged from keeping

Watch and Ward in the City or its Suburbs, and that they shall not be

chosen to the office of Constable, or to any other office in the City or

Suburbs, any Order, Custom, or Law, to the contrary notwithstanding; By

the second section of this Act the power and office of the Censors,

which had been left somewhat undefined by the 14 & 15 _Hen._ 8. is more

accurately and fully determined. They are empowered to enter the houses

of all Apothecaries in the City, for the purpose _only_ of searching and

viewing their wares, drugs, and stuffs, and if any be found defective or

corrupted, they may cause them to be burnt, or otherwise destroyed, and

a penalty of five pounds,[76] to be recovered by any that will sue for

it, is inflicted on apothecaries who obstinately or willingly refuse or

deny the four Censors to enter into their houses; a penalty of forty

shillings is also inflicted on any Censor, who being elected, shall

refuse the oath directed to be taken, or neglect the execution of his

office. The oath of the censor, is by this act, directed to be

administered by the President of the College. The censors are also

obliged to take the oaths of allegiance, supremacy, and abjuration in

the Court of Exchequer at Westminster, hence the impropriety, if not

illegality, of any Papist or Recusant being elected a Fellow of the

College.

By the third and concluding section it is declared, that “forasmuch as

the Science of Physick, doth comprehend and contain the knowledge of

Surgery,” “any of the said Company or Fellowship of Physicians, being

able, chosen, and admitted, by the said President and Fellowship of

Physicians,” may practice the Science of Physic in all its members, both

in London and elsewhere.

The Statute 34 and 35 _Hen._ 8. _c._ 8, entitled “A Bill that Persons

being no common Surgeons, may minister medicines, notwithstanding the

Statute,” refers to the 3d _H._ 8. _c._ 11. omitting all mention of the

subsequent acts of the 14th, 15th and 32d, which were for the regulation

of the Physicians of London, and as this Statute appears to have been

directed against the then Surgeons of London, and for the relief of

charitable persons, who had ministered to poor people, not taking any

thing for their pains and cunning in certain diseases,[77] principally

outward, and therefore (in its limited sense) objects of surgery rather

than medicine; we shall treat of this act more at large when we enter

upon the Charters and Statutes relating to the College of Surgeons. By

this act, however, inward medicines are permitted to be administered by

persons having knowledge and experience of the nature of herbs, roots

and waters, for the stone, strangury or agues.[78] The latter clearly do

not come within the description of what would now be called Surgical

cases, and therefore so far the exclusive privileges of the physicians

are affected by this Statute, yet it appears by the context and

interpretation of the act, (_See Butler v. Coll. of Phys._) that such

administration must be of herbs, roots or waters only, to poor persons,

(_R. Litt. 351,_) and without fee or reward.

The acts of _Henry the 8th_ having been found insufficient in their

provisions for the search of apothecaries wares, and other matters, the

Statute 1st _Mary_, _sess._ 2. c. 9, (_See Appx. p._ 25,) was enacted,

whereby the 14th and 15th _Hen._ 8. _c._ 5, is confirmed and declared to

be in full force, any Act, Statute, Law, Custom, or other thing made to

the contrary notwithstanding; it was further enacted, that whensoever

the President of the College, or such (the Censors) as the President and

College shall yearly authorise to search, examine, correct, and punish,

all offenders and transgressors in the said faculty, within the said

city and precinct, shall commit any such offender to prison, (the Tower

of London excepted), the warden or gaoler of such prison is to receive

and keep such person or persons at the charges of such person or

persons, till discharged by the President and such persons as by the

said College shall be authorised; under penalty of double the fine[79]

such offender be assessed to pay, so that the same fine do not exceed

twenty pounds. By the fifth section, it is provided, that it shall be

lawful for the wardens of the grocers (now apothecaries) company, or one

of them, to go with the Physicians in their search and view of

apothecaries wares; but if the wardens refuse or delay to come, the

Physicians may proceed without them; and the penalty of resisting such

search is raised to ten pounds; By the concluding section, all Justices,

Mayors, Sheriffs, Bailiffs, Constables, and other ministers and

officers, shall assist the execution of the said acts, upon pain of

running in contempt of her majesty.[80]

By these acts of Parliament, the College of Physicians is regulated to

the present day; we have before stated that several Charters, some for

limited and some for general purposes, have been granted to the College.

In 1520, Queen _Elizabeth_ granted by letters patent the bodies of four

malefactors who had been executed for felony, to be taken by the College

every year for dissection.[81] Charles the second granted six more

“provided they be afterwards buried.” Charter 15 _Char._ 2. _Goodall’s_

Coll. p. 62. This privilege we believe has not lately been claimed,

though the present scarcity of bodies for the purposes of instruction

would fully justify its revival: nor is there any doubt but that the

judges in the exercise of their sound discretion might select some of

the more atrocious criminals as proper objects for this additional

severity.

In 1562 _King James_, by letters patent, granted to the College, for the

sum of six pounds a year, that moiety of the fines to be inflicted by

them to which the crown was entitled according to the several acts which

we have before cited. Charter 15 _Ja. Goodall’s_ Coll. p. 37.

We do not think it necessary to trouble the reader with the Statutes and

Bye Law[82] which the College have made for their own internal

Government, pursuant to the power which all Corporations have of making

proper regulations to bind their own members, and according to the

Statute 14 _and_ 15 _Hen._ 8. by which they are specially authorised so

to do; these Statutes have been printed, though not under the sanction

of the College.

OF THE POWERS OF THE COLLEGE.

One of the first and most material of the powers and privileges granted

to the College by the Acts and Charter to which we have referred (and

which the reader will find recited in the Appendix,) is that of

recovering from all persons who practise physic in London and within

seven miles circuit, without their Licence, or Admission, the sum of

five pounds for every month during which they have so practised. This

power has been most minutely investigated and determined in the case of

_Dr. Bonham_.[83] _Coke’s Reports_, 123, (_see Appendix_, p. 62,) which

was an action of false imprisonment brought by _Thomas Bonham_, a Doctor

of Physic, of the University of Cambridge,[84] against the then

President, Censors and some servants of the College; the Defendants

justified under the Statute, (14 and 15 H. 8.) setting forth; that the

plaintiff practised physic in London, and within seven miles circuit,

not being admitted, &c. that being examined he was found insufficient,

and forbid to practise,[85] but notwithstanding such prohibition, he

afterwards practised for a month or more, whereupon they amerced him

five pounds, to be paid to them at their next assembly, &c.[86] and

likewise injoined him to forbear practising any more until he be found

sufficient, &c. upon pain of imprisonment; that he continuing still to

practise was further fined and ordered to be committed; that being

questioned if he would submit to the College, he replied, that he had

practised and would practise without leave of the College, and denied

that by the Statute they had any authority over him, as having taken his

degree of Doctor of Physic within the University regularly, and so

thought himself protected by that Clause in the Act; whereupon the

Censors ordered him to prison, which was executed accordingly, and for

this imprisonment this action was brought. In this case, Mr. _Justice

Daniel_, thought a Doctor of Physic of either University was not within

the body of the act, but suppose him to be within the body, yet he was

excepted by the last clause. But _Mr. Justice Warburton_ held the

contrary upon both points.[87] _Chief Justice Coke_, (for whose

judgment, _see Appendix_, 26,) said nothing as to either of those

points, because all three (who were all the judges present,) agreed,

that this action was clearly maintainable for two other points; and they

resolved,

1. That the Censors had no power to commit the Plaintiff for any of the

causes mentioned in the Bar, because the said clause which gives power

to the said Censors to fine and imprison, does not extend to the said

clause, viz. _That none in the said City, &c. exercise the said

faculty_, &c. which prohibits every one from practising Physic in

London, &c. without licence of the President and College; but extends

only to punish those who practise in London, _Pro delictis suis in non

bene exequendo faciendo et utendo Facultate Medicinæ_, so that their

power (of fine and imprisonment) is limited to the ill and not to the

good use and practice.[88]

2. Admitting that the Censors had power, yet they have not pursued it.

1. Because the Censors alone have power to fine and imprison, whereas

here the President and Censors imposed this fine of five pounds. 2. The

plaintiff was summoned to appear before the President and Censors, and

for not appearing was fined five pounds, whereas the President had no

authority.

3. The fines imposed by them by virtue of this act belong to the king

and not to them,[89] and yet the fine is limited to be paid to

themselves, &c. and for nonpayment they have imprisoned him.

4. They ought to have committed the Plaintiff immediately, though no

time be limited in this act.

5. Their proceedings ought not to be by parol, inasmuch as their

authority is by patent and act of parliament, and especially it being to

fine and imprison.

6. The Act giving a power to imprison until he be delivered by the

President and Censors or their successors, shall be taken strictly, or

otherwise the liberty of the subject is at their pleasure. And this is

well proved by a judgment in Parliament in the same case; for when this

act of 14. _Hen._ 8. had given the Censors power to imprison, yet it was

taken so literally, that the gaoler was not bound to receive such as

they should commit to him, because they had authority to imprison

without any Court; and thereupon the Statute 1 _Mary_, _cap._ 9, was

made to compel the gaoler to receive them under a penalty, and yet none

can commit to prison unless the gaoler receives him; but the 14 _Hen._

8, was taken so literally that no necessary incident was implied.

And it being objected, the 1 _Mar. Cap._ 9. had enlarged the power of

the Censors, as appeared by the words of the act; it was clearly

resolved, that it does not enlarge their power to fine and imprison for

any matter not within the 14th _Hen._ 8. the words of the act of _Queen

Mary_, being “_according to the tenor and meaning of the said act_.” And

further, “_shall commit any offender, &c. for his, &c. offence or

disobedience, contrary to any article or clause contained in the said

grant or act to any ward, gaol, &c._” And in this case, it does not

appear by the record, that the plaintiff has done any thing contrary to

any article or clause within the grant or act of 14th _Hen._ 8. and for

the two last points judgment was given for the plaintiff, _Nullo

contradicente_ as to them. _Michss. Term._ 6 _James._

The Lord _Chief Justice_, _Sir Edward Coke_, in the conclusion of his

argument, observes these seven rules for the better direction of the

President and Commonalty of the said College for the future.

1. That none can be punished for practising Physic within London, but by

forfeiture of five pounds a month, which is to be recovered by law.

2. If any practise Physic there for less time than a month that he shall

forfeit nothing.

3. If any person, prohibited by the Statute, offend in _non bene

exequendo, &c._ they may punish him according to the Statute within the

month.

4. Those whom they commit to prison by the Statute ought to be committed

immediately.

5. The fines which they assess according to the Statute belong to the

king.

6. They cannot impose fine or imprisonment without making a record

thereof.

7. The cause for which they impose a fine and imprisonment ought to be

certain, for this is traversable.[90] For though they have Letters

Patents and an Act of Parliament, yet inasmuch as the party grieved has

no other remedy, neither by writ of error or otherwise, and they are not

made judges, nor a court given to them, but have authority only to do

it, the cause of their commitment is traversable in action of false

imprisonment brought against them.

_Chief Justice Holt_, in delivering the opinion of the Court, said that

notwithstanding the opinion in _Dr. Bonham’s_ case, the charge of male

administration of physic is not traversable, and that my _Lord Coke’s_

opinion in that case was but _Obiter_, and no judicial opinion: besides

that he seemed to have been under some transport, because _Dr. Bonham_

was a graduate of Cambridge, his own mother university. And he himself

after in the same case says, that if the Censors do convict a man for

such offence, they ought to make a record of it; and that, they cannot

do unless they are Judges of Record: and then we say their proceedings

are untraversable, and they unpunishable for what they do as judges. 12

_Mod._ 388. _Pasc._ 12 _Will._ 3. in the case of _Doctor Grenville

against the College of Physicians_.

That Graduates of the two Universities have no privilege to practise in

London, and within seven miles circuit,[91] has been repeatedly decided;

see Doctor _Levet’s_ case, Lord _Raymond’s Rep._ 472; _The Coll. of

Physicians against West 10, Modd 353 and Appx._ That by Graduates is

meant Graduates in Physic only. _See College Questions. Appx._

The case of _Doctor Bonham_,[92] which we have been the more particular

in citing as it contains much learning on the subject of our enquiries,

and is reported by the first authority of his time, having shown that

the College cannot fine or imprison for unlicenced practice, but must

proceed by action in the ordinary Courts for the statutable penalty of

five pounds a month, we must next show by what name the College ought to

sue, for upon this point much difference of opinion and practice appears

to have prevailed. In the case of _The President and College of

Physicians v. Talbois_, exceptions were taken that the action should be

by the President alone. But _per curiam_, “being a Corporation, it is

natural for them to sue by their name of creation.” 1 _Lord Raymond_, p.

153. _Hil. Term_ 8 & 9, _Will._ 3. See also _The President and College

of Physicians v. Salmon_, B. R. _Trin. Term_ 13 _Will._ 3. 1. _Ld.

Raym_, p. 680; 5 _Mod._ 327; and this appears to be the best rule. In

the previous case of _The President of the College v. Tenant. Hill.

Term._ 11 _James_, _Bulstrode’s Rep. Part._ 2, _p._ 185, the action was

brought by the President alone, on which the Judges were divided in

opinion, _Haughton_ Justice saying, “he may here well bring the action

alone in his own name,” but the Declaration being bad in other respects,

the rule of the Court was, _Quod querens nil capiat per Billam_. The

Entry in _Rastal_, _p._ 426, is in favour of the doctrine that the

President may sue alone, as is also the case of Doctor _Laughton v.

Gardner_, 4 _Croke_, _p._ 121. _Trin. Term._ 4 _James_, and more

especially the consequent case of Doctor _Atkins v. Gardner_, 2 _Croke_,

169 _Pasc_ 5 _James_, where Dr. _Laughton_ having brought an action of

debt on the Statute, as President of the College obtained judgment

_Nisi_, but dying before execution, his successor _Doctor Atkins_,

brought a _scire facias_ against the defendant to have execution, it was

therefore demurred because the _scire facias_ ought to be brought by the

executor or administrator of him who recovered and not by his successor;

but the Court held that the successor might well maintain the action,

for the suit is given to the College by a private Statute, and the suit

is to be brought by the President for the time being, and he having

recovered in right of the Corporation, the law shall transfer that duty

to the successor of him who recovered and not to his executors. 1 _Rolle

Abr._ 515.

The penalties are to be recovered by action of debt in _the President

and College v. Salmon_; I _Ld._ _Raym_, _p._ 680.[93] an exception was

taken that the proceeding should be by information at the suit of the

king, but the Court decided that where a certain penalty is given by a

statute the person to whom, &c. shall have debt by construction of law.

Another exception was taken in the same case, that the action ought not

to be brought _tam quam_, no action being given to the king. _Sed non

allocatur._ For _per curiam_, the precedents are the one way and the

other. See _Butler v the President Cro. Car._ 256. and cases there

cited.[94]

The words of the Statute of _Henry_ being strongly prohibitory, none may

practise physic under any authority, in London and within seven miles

without licence of the College; in _the College of Physicians v. Bush._

4 _Mod._ _p._ 47. the defendant pleaded letters patents of king Charles

the second, by which free liberty is given to French protestants to

exercise the faculty of Physic in London and Westminster, &c. and that

he was a French protestant. Upon demurrer the plea was held ill. For a

Charter or Letters Patent cannot vary an act of Parliament.

The next material point to be considered is, what is a practising of

Physic within the meaning of the statutes; this would at first sight

appear to be a very simple question, but the act of the 34th _Hen._ 8.

which gives liberty to persons not being Surgeons, to administer outward

medicines in certain cases, and drinks for the Stone, Strangury, and

Ague, created some difficulties; it was pleaded in the case of Doctor

_Butler against the President of the College_, (_Cro. Car._ 256,) to

which plea the President replied by showing the Statute of the 1 _Mary_,

_c._ 9. which confirms the Charter and Statute of the 14th _Hen._ 8. and

appoints that it shall be in force notwithstanding any Statute or

Ordinance to the contrary; on this several questions arose; those which

relate to the special pleading of the case we omit, but the

interpretation of the Statutes is material; it was doubted first whether

the 34th _Hen._ 8. did repeal any part of the 14th as to Physicians, or

whether as the preamble recites, it was directed against Surgeons, and

next whether if it were in any degree repealed, the Statute 1st _Mary_

did not revive the 14th and repeal the 34th. “_Richardson_, chief

Justice, conceived it was repealed by _primo Mariæ_, by the general

words, any act or Statute to the contrary, of the act of _decimo quarto

Henrici Octavi_, notwithstanding. But I (“_loquitur Croke_,”) conceived

that the act of _tricessimo quarto Henrici Octavi_, not mentioning the

Statute of _decimo quarto Henrici Octavi_, was for Physicians; but the

part of the act of _tricessimo quarto Henrici octavi_, was concerning

Chirurgions and their applying outward medicines to outward sores and

diseases, and drinks only for the Stone, Strangury and Ague; that

Statute was never intended to be taken away by _primo Mariæ_. But to

this point, _Jones_ and _Whitlock_, would not deliver their opinions;

but admitting the Statute 34 _Hen._ 8. be in force, yet they all

resolved, the defendant’s[95] plea was naught, and not warranted by the

Statute; for he pleads, that he applied and ministered medicines,

plaisters, drinks, _Ulceribus Morbis et Maladiis, Calculo Strangurio,

Febribus et aliis in Statuto mentionatis_; so he leaves out the

principal word in the Statute (_Externis_), and doth not refer and shew

that he ministered potions for the Stone, Strangulation or Ague, as the

Statute appoints to these three diseases only and to no other; and by

his plea his potions may be ministered to any other sickness; wherefore

they all held his plea was naught for this cause, and that judgment was

well given against him; whereupon judgment was affirmed.” This case is

reported more fully in _Brownlow_, p. 126. See also _Goodall_, p. 221 to

p. 259.

But though this statute 34 _Hen._ 8th gave a very considerable latitude

to unlicensed practice, the decision of the House of Lords in the case

of _Rose_ has rendered it yet more difficult to determine what is a

practising of Physic within the statute 14 _Hen._ 8th.

This case arose on an action in the King’s Bench for practising Physic

within seven miles of London without licence; the case upon a special

verdict was, that the Defendant being an Apothecary by trade was sent to

by _John Seale_[96], then sick of a certain distemper, and he having

seen him, and being informed of the said distemper, did without

prescription or advice of a Doctor and without any fee for advice,

compound and send the said _John Seale_ several parcels of physic as

proper for his said distemper, only taking the price of his drugs; and

if this were a practising of physic, such as is prohibited by the

Statute was the question: and after several arguments the Court at last

unanimously agreed, That practising of Physic within this statute

consists, 1st, In judging of the disease and its nature, constitution of

the patient, and many other circumstances. 2ndly, In judging of the

fittest and properest remedy for the disease. And 3dly, In directing and

ordering the application of the remedy to the diseased. And that the

proper business of an Apothecary is to make and compound, or prepare the

prescriptions of the doctor pursuant to his directions. It was also

agreed, That the Defendant’s taking upon himself to send physic to a

patient as proper for his distemper without taking ought for his pains,

is plainly a taking upon himself to judge of the disease and fitness of

the remedy, as also the executive or directing part. _Et per tot. Cur._

The Plaintiff had judgment. 6 _Mod._ 44. 16 _Vin. Abr._ 341. Against

this judgment the Defendant _Rose_ brought a Writ of Error to the House

of Lords, “That judgment having been given in the Queen’s Bench against

the now Plaintiff on a special verdict, he humbly hopes the same shall

be reversed for these reasons:

“That the consequence of this judgment will entirely ruin the Plaintiff

in his trade, and indeed all other Apothecaries, since they can’t (if

this judgment be affirmed) use their professions without the prescript

or license of a Physician.

“That the constant use and practice[97] which has always been with the

Apothecary, shall as we humbly hope be judged the best expounder of this

Charter: and that selling a few lozenges, or a small electuary, to any

asking a remedy for a cold, or in other ordinary or common cases, or

where the medicine has known and certain effects, may not be deemed

unlawful, or practising as a Physician, when no fee is taken or demanded

for the same.

“That the Physicians by straining an Act made so long ago, may not be

able to monopolize all manner of Physic solely to themselves; and the

rather, for that such a construction will not only be the undoing of the

Apothecaries, but also,

“1. A tax on the Nobility and Gentry, who in the slightest cases, even

for their servants, can’t then have any kind of medicines, without

consulting and giving a fee to one of the College.

“2. An oppression to the poorer families not able to go to the charge of

a fee; the suppressing of the Apothecaries being to deprive such poor

people and families of all manner of assistance in their necessities.

“3. A certain prejudice to all sick persons on sudden accidents, and new

symptoms arising, especially in acute diseases, and in the night,

wherein if the Apothecary is called, and shall dare to apply the least

remedy, he runs the hazard of being ruined, or the Patient the danger of

being lost.”

“For all which, and several other errors in the Record, it is humbly

prayed,” &c. &c.

It must be observed that these reasons turn on the policy and not on the

law of the question, and would have been better addressed to the House

of Peers in their legislative, than in their judicial capacity; the

hardship of depriving the Apothecaries of all practice, and the

inexpediency of too strictly enforcing the statute of _Henry_ 8th, might

have justified an application to the Legislature for an alteration of

the law, but they could not warrant even the highest tribunal in the

land in departing from the law established by Act of Parliament, and

gravely decided by the judges; we must therefore conclude that some

better arguments were adduced on the hearing than have been handed down

to us by the reporters; for if seeing the patient, judging of the

complaint, and administering the proper remedies for it, be not a

practising of Physic within the meaning of the statute, we must confess

ourselves utterly at a loss to define the practice which is. It is a

futile and unworthy subterfuge to allege that no fee is taken for

advice, and that the sum charged is only the price of the drugs, for the

contrary is evident; the poacher might as well pretend (as has been

done) that he sells the basket at his own price, and throws the hare

into the bargain, as a compliment to the purchaser,—or the vender of

nostrums might attempt to avoid the stamp duty by selling the bottles

and giving the physic. We are very far indeed from wishing to put unfair

restraints on trade, or to deprive any class of men of the free exercise

of their professional abilities, but as the Legislature has deemed it

necessary to guard the corporeal health of the people, by enacting that

only persons who on examination by a competent authority have been found

of sufficient ability shall practise, we have thought it our duty to

point out the law as it stands, and if in doing so we are occasionally

obliged to hint at defects, we do it in the hope that by drawing abler

attention to a neglected subject, we may incidentally give rise to some

improvements, beneficial not only to the public at large, but ultimately

profitable to those who, at the first glance might think themselves

injuriously affected by them.

We have noticed that the reasons alleged by Writ of Error against the

judgment of the Court of King’s Bench in the case of _The College of

Physicians against Rose_, do not appear to us to have been legally

satisfactory, the judgment of the King’s Bench[98] however was reversed,

(_see_ 1 _Brown’s Parl. Ca._ 78. _and Appendix_, 126), and consequently

the greater portion of the practice of Physic has been transferred to

the Apothecaries. This was for some time a very serious evil; they who

had been educated as mere compounders, suddenly became prescribers of

medicine; it is easy to conceive how large a portion of ignorance and

empiricism was thus let loose upon the public: the mischief has indeed

gradually decreased, as many men of liberal education have entered the

field thus enlarged for them, and the natural effect of competition has

induced improvement; still something is wanting. In large towns and

among the higher and middle classes of society, talent and mediocrity

soon find their proper levels; but at a distance in the country,

ignorance and imposture may erect their stages at least with impunity,

and more than probably with success; we have ourselves heard most

lamentable accounts of the mal-practice to which the poor and ignorant

have been subjected by low country practitioners and their assistants;

for the interpretation of the law which let in the Apothecary to

unrestrained practice, could not exclude the apprentice, and we

therefore find the shop-boy in cases of emergency visiting and

prescribing for his master’s poorer patients.

For these, among other reasons, the Apothecaries’ Company have obtained

an Act of Parliament to alter and enlarge the powers of their Charter.

“And whereas much mischief and inconvenience has arisen from great

numbers of persons in many parts of England and Wales exercising the

functions of an Apothecary who are wholly ignorant, and utterly

incompetent to the exercise of such functions, whereby the health and

lives of the community are greatly endangered; and it is become

necessary that provision should be made for remedying such evils; Be it

therefore, &c.” This passage, from a Statute solicited by the

Apothecaries themselves, will exonerate us from any imputation of

illiberal remark; we sincerely hope that the Act will produce the

intended benefit, though when we have occasion to treat of it more at

large under the head of the _Apothecaries Company_, we may have occasion

to point out some particulars in which we think it might be amended.

We have thus cited the leading cases on unlicensed practice, and the

authorities which we have quoted will enable the medical reader desirous

of better information, to pursue the enquiry to the fountain head.

“_Melius est petere fontes quam sectare rivulos._”

The next branch of the jurisdiction of the College is yet more

important, as it extends to the control and punishment of _Mala

Praxis_[99], whether by persons licensed or unlicensed. On this head the

leading case is that of _Groenvelt and Burwell_[100], (1 _Comyns_ 76: 1

_Salk_ 396; _see Appendix_). A complaint having been made to the College

of Physicians, informing them that Dr. _Groenvelt_ had administered

Cantharides in powder, he was summoned before the Censors and by them

committed for _mala Praxis_; for this imprisonment he brought his action

in the King’s Bench, _Trin._ 12 _Will._ 3. from which it appears that

“The Censors of the College of Physicians in London are impowered to

inspect, govern, and censure all Practisers of Physic in _Civitate_

London and seven miles round, so as to punish by fine, amerciament, and

imprisonment. Per _Holt_ Ch. J. the Censors _have a judicial Power_; for

a power to examine, convict, and punish, is judicial, and they are

judges of record because they can fine and imprison, and being judges of

the matter, what they have adjudged is not traversable.”

In _mala Praxis_ it matters not whether the party offending be a member

of the College, a Licenciate, or an unlicensed Practitioner, for the

Statute gives jurisdiction over all Physicians whatsoever, “_habeant

supervisum et scrutinium, correctionem et gubernationem omnium et

singulorum dictæ civitatis medicorum utentium facultate Medicinæ in

eadem civitate ac aliorum medicorum forensicorum quorumcunque facultatem

illam medicinæ aliquo modo frequentantium et utentium infra eandem

civitatem et suburbia ejusdem sive infra septem miliaria in circuitu

ejusdem civitatis_,” and Ch. J. _Holt_ says, “Though a person be not one

of the College, yet if he practise Physic within their jurisdiction, he

ought to subject himself to the law as well as any other.” 12 _Mod_ 393.

And for those who are not Physicians but have assumed the character,

they must take it _cum onere_, and will be estopped from pleading the

illegality of their practice when punished for the irregularity of their

prescriptions: it is to be wished however that the words of the Charter

were more explicit in this particular.

Nor are the Censors liable to any action for error in judgment, for

“though the Pills and Medicines were really _Salubres Pilulæ et bona

Medicamenta_, yet no action lies against the Censors; because it is a

wrong judgment in a matter within the limits of their jurisdiction, and

a judge is not answerable, either to the king or the party, for the

mistakes or errors of his judgment, in a matter of which he has

jurisdiction: it would expose the justice of the nation, and no man

would execute the office upon peril of being arraigned by action or

indictment for every judgment he pronounces.” (1 _Salk_, 397).

“_Holt_ Ch. J. said, it seemed to him that the Censors may tender an

oath as a necessary consequence of their judicial power; but said he

would give no positive opinion.” _Dr. Grenville_ v _Coll. of Phys._ 12

_Mod._ 392. 16 _Vin. Ab._ 345. the general rule is, that where a statute

confers a power, the law supplies all necessary incidents required for

its execution.

By the 10th _Geo._ 1. _cap._ 20. _s._ 7. Where any person is condemned

by the Censors for not well executing, practising, or using the faculty

of Physic, he may within fourteen days after notice appeal to the

College, and the judgment given on such appeal shall be final. Sect. 3.

of the same act gives a similar right of appeal to Apothecaries. But

this Act, as we have before observed, has expired; should its enactments

ever be revived, this right of appeal should not be omitted, for it is

expedient that some control should be exercised over all summary

jurisdictions. To the policy of the 3d and 6th sections we cannot so

readily give our assent; the one exempts drugs in merchants warehouses

from search, and the other enacts that Patentees for the sole making any

medicine shall not be prejudiced thereby. By the first of these the

Censors are excluded from some known manufactories of factitious drugs,

and an important security is taken away from our export trade, for it is

evident that foreigners would more readily buy the drugs which have

passed through our hands, if they were assured that their quality had

been subjected to strict and competent scrutiny. To Patent Medicines we

may be allowed to avow our most decided hostility, and as it is

notorious that the greater part of them are not made up according to

their specifications, we may without charge of illiberal prejudice claim

for the public some security that the preparations which they buy as

“_mild vegetable extracts_,” may not be clandestinely poisoned with

Antimony, Mercury, and Arsenic. It may be said that the public have a

remedy by the forfeiture of the Patent consequent on the falsehood of

the specification, but this can only be effected by an expensive process

to which the mere purchaser of a phial of trash may not choose to

subject himself, even if he have skill enough to detect the fraud

practised upon him.[101]

We have thus shown by repeated precedents that none can legally practise

Physic in London, or within seven miles circuit of the city, who are not

either Fellows or Licenciates of the College, nor can any, except

Graduates in Physic of Oxford and Cambridge, lawfully practise in the

country, without a similar license; yet, as the Act of Parliament has

annexed no specific penalty to the transgression, the only remedy in

such case is by indictment for a misdemeanor: for where there is no

punishment attached by statute to the violation of a prohibitory clause

in an Act of Parliament, this indictment lies. (See 4 _Term Rep._ 202.)

Unfortunately the history of the College litigations does not cease with

their proceedings against unlicensed practitioners; they have also had

to contend, on the defensive, with their own Licenciates, who have

claimed a full participation in the rights and privileges of the

Fellows:[102] we hope most earnestly that the question is now at rest,

and that the cases we are about to cite may serve as beacons to avoid

past errors, not as precedents for future proceedings.

“It would require a volume,” says Sir _James Burrows_, vol. 4. p. 2186,

“to give a full and particular detail of this long contest between the

Fellows and the Licenciates; which was litigated with great spirit and

eagerness between several very learned and respectable gentlemen of the

faculty on both sides. It must not therefore be attempted within the

compass of a collection, already perhaps too faulty in this

respect[103], as being in many instances more minute and circumstantial

than may appear absolutely necessary, or at all agreeable to some

readers.”

“The substance of it ought not however to be omitted, which was as

follows.”

“A rule had been obtained upon the application of Doctor _Letch_ for the

College of Physicians to shew cause why a mandamus should not issue,

directed to them, commanding them to admit _John Letch_, Doctor of

Physic, to be a member of the College.”

“This Rule was made upon the whole body of the College or Community of

the Faculty of Physic of the city of London; and also on the President

and Censors of the said College.”

“Mr. _Yorke_ against the Rule, Sir _Fletcher Norton_ for it.”

“The short state of the material facts, with respect to this mandamus,

was, that Doctor _Letch_, who practised as a Man-Midwife,[104] was

summoned by the College to be examined. He thereupon came in, and was

examined thrice at the _comitia minora_: And after the third of these

examinations, he was there balloted for ‘Whether he should be _approved

of by them_ or not.’ A dispute arose upon this ballot. The majority of

the number of balls _appeared_ to be for approving him: but one of the

Censors declared ‘that he had by mistake put in his ball for

approbation; which he meant and intended to be against approving him.’

It was proposed to ballot over again, but the President declared this to

be an approbation by a majority of votes on the ballot. On Doctor

_Letch_ being proposed to the _comitia majora_, nineteen to three of the

members present were against putting the College Seal to his letters

testimonial. And he was informed that he was not elected.”

“His Counsel insisted that having been returned sufficient by the

_comitia minora_, he had already acquired an inchoate right to

admission, which the Court would enforce the completion of, by

mandamus.”[105] For the argument and authorities vide _Rex_ v. _Askew_

_ubi supra_ and _Appendix_.

“Lord _Mansfield_ in his judgment laid down the following among other

rules.”

“The Court (i. e. of King’s Bench) has jurisdiction over Corporate

Bodies to see that they act agreeably to the end of their institution.”

“Where a party who has a right has no other specific legal remedy, the

Court will assist him by issuing this prerogative writ (i. e.

_mandamus_) in order to his obtaining such right.”

“But it is not a writ that is to issue of course, or to be granted

merely for asking.”

“The College are obliged in conformity to the trust and confidence

placed in them by the Crown and the public, to admit all that are fit;

and to reject all that are unfit.”

“The judgment and discretion in determining on skill, learning, and

sufficiency to practise physic, is trusted to the College, and the Court

will not interrupt them in the due and proper exercise of it. But their

conduct in the exercise of this trust thus committed to them ought to be

fair, candid and unprejudiced; not arbitrary, capricious or biassed;

much less warped by resentment or personal dislike.”

“It is possible that other causes of rejection than insufficiency of

skill may occur, as _badness of morals_, for instance; of these the

Court will judge.”

“If they should refuse to examine the candidate at all, the Court will

oblige them to do it.”

“The power (of admission) remains with the body; and the examination by

the President and four Censors is only preparatory, and for the ease of

the body at large.”

“Every Fellow may examine and argue with the candidate in the _comitia

minora_ though he has no vote _there_.”

“The delegation to the _comitia minora_ to examine is good.”

“Mr. Justice _Aston_ followed Mr. Justice _Yates_ in saying that Doctor

_Letch_ should rather have applied for a mandamus requiring the College

to grant him a license to practise within London and seven miles of it,

than for a mandamus to admit him as a member.”

“The _comitia majora_ acted with great moderation in admitting him to

another examination.

“Mr. Justice _Hewit_ declined giving any opinion (on a point started in

argument) whether London Licenciates are _members_ of the College or

not; though he hinted, that the more he thought of it, the more he

doubted it.”

“We should go a great way if we should say ‘that a Licenciate to

practise within _London_ and seven miles round is a _member_ of the

College’.”

The Rule was accordingly discharged by the unanimous opinion of the

Court.

But the matter did not rest here; the notion that the Licenciates were

entitled to be considered as Members of the College, under the term

Commonalty or otherwise, gained ground; and accordingly two terms after

the original argument and judgment, Sir _Fletcher Norton_ (afterwards

Lord _Eardly_) moved for a Rule upon Dr. _Askew_ and others (the four

then Censors), for them to shew cause why an information in nature of a

_quo warranto_ should not be granted against them, to shew by what

authority they acted as Censors of the College of Physicians.

The objection was, that whereas the election ought to be by the _whole_

body, these gentlemen had been elected only by a _select_ body; namely

by the Fellows, _exclusive_ of the Licenciates, who _demanded

admittance_; which was refused them by the Fellows, on pretence of their

having no business there, upon that occasion.

After an argument on three several days, during which Sir _Fletcher

Norton_, Mr. _Morton_, Mr. _Wedderburn_ (afterwards Lord _Roslyn_,)[106]

Serjeant _Glynn_, Mr. _Walker_, and Mr. _Mansfield_ (afterwards Chief

Justice of the Common Pleas), were heard for the Licenciates, and Mr.

_Yorke_ (afterwards Lord _Chancellor_), Mr. _Dunning_ (afterwards Lord

_Ashburnham_), Serjeant _Davy_, Mr. _Ashurst_ (afterwards a Judge), and

Mr. _Wallace_ for the College, Lord _Mansfield_ delivered his

opinion.[107] “The question now before us is singly this, Whether the

persons applying for the information _are Fellows_ and _entitled to

vote_ in the election of Censors. If they are, the election of these

Censors, being made in _exclusion_ of their votes, is _not good_. If

they are not Fellows, and have no right to vote in the election of

Censors, then this election stands unimpeached.”

The question is, “Whether these _Licenciates_ are Socii, or Collegæ, or

Fellows,” which are synonimous terms.

The facts are not disputed: and there is no doubt about the law. It has

been admitted on both sides that there has been a great number of

_by-laws_ and _long-usages_; and the permission of these Licenciates _to

practise_ is not disputed. But I doubt whether this _permission to

practise_, and these _letters testimonial_, can amount to an admission

into the Fellowship of the Corporation or College. Nothing can make a

man a Fellow of the College without the _Act of the College_. The power

of examining, and admitting after examination, was not an arbitrary

power, _but a power coupled with a trust_. They are bound to admit every

person whom upon examination they think to be fit to be admitted, within

the description of the Charter and the Act of Parliament which confirms

it. The person who comes within that description has a _right_ to be

admitted into the _Fellowship_; he has a claim to several exemptions,

privileges, and advantages, attendant upon admission into the

_Fellowship_; and not only the candidate himself, if found fit, has a

personal right, but the _public_ has also a right to his service; and

that not only as a physician, but as a censor, as an elect, as an

_officer_ in the offices to which he will upon admission become

eligible.[108] They have power not only by their charter, but by the law

of the land, to make fit and reasonable by-laws, subject to certain

qualifications. It appears from the Charter and the Act of Parliament,

that the Charter had an idea of persons who might practise physic in

_London_ and yet not be Fellows of the College. The President was to

overlook _not only_ the College, but also “_omnes homines ejusdem

facultatis_.” So when the College or Corporation were to make by-laws,

these by-laws were to relate _not only_ to the Fellows, but to _all

others_ practising physic within _London_ or seven miles of it.

Then let us see how the usage was.

In 1555 they must have had a probationary license before admission into

the College. Afterwards it was to be a probation for four years before

admission. The College might grant such probationary licenses, with some

reason, and agreeably to their Institution. This shews that some

licenses were granted to persons not Fellows of the College. The 3 H. 8

takes away all former privileges.[109] In 1561, a _partial_ license was

granted to an occulist. A person may be fit to practise in _one_ branch

who is _not_ fit to practise in _another_. Licenses have also been

granted to _women_.[110] _Partial_ licenses have been given for above

200 years.[111] In 1581 notice is taken of _three classes_: Fellows,

Candidates, and Licenciates. The licenses probably took their rise from

that illegal by-law (now at an end) which restrained the number of

Fellows to twenty.

This being premised, let us inquire “Who these gentlemen are that are

now applying to the Court.”

They are persons who set up a title directly contrary to the _sense_ in

which their license is given _to_ them and received by them. They cannot

avail themselves of their instruments in this way: it would be a _cheat_

upon the College. And they have acquiesced many years under this license

given them by the College, as merely a license to practise.

But even supposing them to have a right to be Fellows, yet, as it is

clear that the license does not make them _ipso facto_ Fellows, they

could not vote _in the election_ of Censors _before their_ admission to

the Fellowship; and therefore the exclusion of their votes cannot

impeach this election.

I am of opinion “that this rule ought to be discharged.”

His Lordship (but this was _obiter_) then made some comment on the

statutes and by-laws of the College; and recommended their revisal under

the best advice, saying, “I see a source of great dispute and litigation

in them as they now stand.”[112]

Mr. Justice _Yates_ concurred with the Chief, as did Mr. Justice _Aston_

on some points; but upon the construction of the Charter and Act of

Parliament, he thought that in grants of this kind, the construction

ought to be made in a _liberal_ manner; and this grant includes “_Omnes

homines ejusdem facultatis de et in civitate prædictâ_,” and the

application to Parliament for the Act of 14 and 15 H. 8. to confirm the

Charter is made by the six persons particularly named in it, “_and all

other men of the same faculty_ within the City of London and seven miles

about.” It seemed to him that the idea was “that all persons duly

qualified, who took testimonials under the College seal, were to be of

the community.” He should, however, give no opinion, he said, how it

might turn out upon a _mandamus_.

Mr. Justice _Willes_, confining himself to the subject in question,

concluded, “they cannot before their admission maintain this rule.”

Lord _Mansfield_ and Mr. Justice _Yates_ said they gave no opinion how

it might be upon a _mandamus_.

The Court were unanimous in discharging the rule.

The hint thrown out by three of the Judges was followed up by the

Licenciates. On Thursday, 17th Nov. 1768, Sir _F. Norton_ and Mr.

_Norton_ moved the Court on behalf of Doctor _Edward Archer_, and Mr.

_Walker_ on behalf of Dr. _Fothergill_, for writs of _mandamus_, to

oblige the College to admit these two Licenciates, with an intention to

try the question “whether the Licenciates had a right to be admitted

Fellows;” and that litigation lasted till June 1771. But they only came

round to the same point which had been already determined, as above; for

these two gentlemen had accepted licenses _under the by-law_ of 1737,

and the Court were of opinion “that they ought not afterwards to desert

it, and treat it as null and void; and set up a right of admission under

the Charter, upon the foundation of this very license which they had

accepted _under the by-law_, upon the supposition that the by-law was a

bad one.” So that the return was allowed, upon that objection to their

claim. And the intended question remained unsettled. See 5 Burr. 2740,

where also will be found the form of the mandamus and the return.[113]

The last case on this subject is that of Doctor _Stanger_. (7 Term Rep.

282, which as the most recent decision, and for the luminous judgment of

Lord _Kenyon_, we have inserted in the appendix.) This, like the cases

in _Burrows_, was argued by the most celebrated lawyers of the day, Mr.

Serjeant _Adair_, Mr. _Law_, (afterward Lord _Ellenborough_) Mr.

_Chambre_, (afterward a Judge) Mr. _Christian_, (now Chief Justice of

_Ely_) having argued in support of the rule; and Mr. _Erskine_,

(afterward Chancellor) Mr. _Gibbs_, (Chief Justice C. P.) Mr. _Dampier_,

(a Judge) and Mr. _Warren_, (now Chief Justice of _Chester_) against it.

The rule for a _mandamus_ was discharged;[114] it may therefore now be

considered as a resolved point of law, that a Doctor of Physic, who has

been licensed by the College of Physicians to practise physic in

_London_ and within seven miles, cannot claim as a matter of right to be

examined in order to his being admitted a Fellow of the College. The

College, who have power by their Charter (confirmed by Act of

Parliament) to make by-laws, have made by-laws respecting the

qualifications of persons to be admitted; by them it is ordained that no

person shall be admitted into the class of candidates before admission

into the College, unless he has taken a degree of M. D. at Oxford,

Cambridge, or Dublin, except in two cases: in one of those cases the

President may propose in every other year a Doctor of Physic of a

certain standing, and if he be approved by the College, he may be

admitted a Fellow; in the other, any Fellow may propose a Doctor of

Physic of a certain age and standing, and if approved at certain

meetings he may be admitted a Fellow. And it was ruled that these were

reasonable by-laws.

The following may now be considered as the legal classes of Physicians.

1st. The actual members of the College of Physicians, divided into their

several denominations of President, Elects, and Fellows.

2d. Those who, being graduates of the universities of Oxford and

Cambridge, are licensed to practise by the College in London and within

seven miles during their respective periods of probation, previous to

becoming Fellows; these are Candidates who, being Doctors of Physic,

have undergone their examination for the Fellowship, and at the end of

one year are capable of becoming members or Fellows of the College; and

inceptor Candidates,[115] who being Bachelors of Physic aspire to the

Fellowship.

3d. The medical graduates of our two Universities.

4th. The Licenciates who are admitted by the College to practise in

London and within seven miles, and the extra Licenciates who are

admitted to practise in the country but not within the privileged

district of the College.

These are the laws respecting Physicians as a body Corporate; we have

not added their Statutes as they are separately printed, although they

have never been published by the authority of the College. It now

remains for us to notice their rights as individuals, the exemptions to

which they are entitled, and the actions to which they are liable.[116]

2. OF THE COLLEGE OF SURGEONS.

THE present College of Surgeons owes its existence to the Act of the

18th _Geo._ 2. _c._ 15. (_see Appendix_, p. 30), by which the Surgeons

of London are separated from the Barbers, with whom they had been made

one Company and Body Corporate, by the 32nd _Hen._ 8. _c._ 40. (_see

Appendix_, p. 14),[117] previous to which period (A. D. 1540) the

Surgeons had no incorporation; they had indeed petitioned for and

obtained an Act of Parliament under the name of the Wardens and

Fellowship of the craft and mystery of Surgeons enfranchised in London,

stating their number not to exceed twelve persons, to which number the

relief from “quests and other things” granted by the Act (5th _Hen._ 8.

_c._ 6. _see Appendix_, p. 5), is limited; but it is evident by the

preamble to the 32nd _Hen._ 8. that they, though called a Company, “be

not incorporate nor have any manner of corporation” previous to that

period. The examination of Surgeons, as that of Physicians also, had

been confided to the bishops (3 _Hen._ 8. _c._ 11.), nor does it appear

that the subsequent Act of _Henry_ remedied this defect. By the 18th

_Geo._ 2. however they have been made a separate and distinct Body

Corporate and Commonalty, under the name of _Masters, Governors, and

Commonalty of the art and science of Surgeons of LONDON_, by which name

they may sue and be sued; (_Appendix_, p. 39). All liberties,

privileges, franchises, powers, and authorities, which they might have

enjoyed under the united Company and their Act of Parliament, or under

the Letters Patent of _Charles_ the 1st, or the other Royal Grants,

Charters, and Patents, therein mentioned and referred to, so far as they

relate to the science of Surgery, are confirmed to them (§ 8.

_Appendix_, p. 43). Now the Charter of _Charles_ the 1st, as recited in

the preamble of this Act, grants that “no person or persons whatsoever,

whether a freeman of the said society or a foreigner, or a native of

England, or an alien, should use or exercise the said art or science of

Surgery within the said cities of _London_ and _Westminster_ or either

of them, or within the distance of seven miles of the said city of

London, for his or their private lucre or profit, (except such

Physicians as are therein mentioned) unless the said person or persons

were first tried and examined in the presence of two or more of the

Masters or Governors of the mystery and commonalty aforesaid for the

time being, by four or more of the said examiners so to be elected and

constituted as aforesaid and by the publick Letters Testimonial of the

same Masters or Governors under their common seal approved of and

admitted to exercise the said art or science of Surgery, according to

the laws and statutes of the kingdom of _England_, under the penalty in

the said Letters Patent mentioned.”[118]. (_see Appendix_, p. 36). The

same Charter provides “That no one, whether a freeman of the mystery or

commonalty aforesaid, or a foreigner, whether a native of England, or an

alien, exercising the art of Surgery within the cities of _London_ and

_Westminster_ or the suburbs or liberties thereof, or within seven miles

of the said city of _London_, should go out from the port of _London_,

or send out any apprentice, servant, or other person whomsoever, from

the said port, to execute or undertake the place or office of a Surgeon

for any ship, whether in the service of the Crown, or of any merchant or

others, unless they and their medicines, instruments and chests

respectively, were first examined, inspected, and allowed by two such

Masters or Governors of the mystery and commonalty aforesaid for the

time being, as were skilled, knowing and professors in the same art of

Surgery, under the penalty therein mentioned;” (_see Appendix_, p. 37).

And the Act (§ 9. _Appendix_, p. 44,) following the same principle,

enacts “That from and after the said first day of July, One thousand

seven hundred and forty-five, the Examiners of the Company of Surgeons

established by this Act shall, and they are hereby required, from time

to time upon request to them made, to examine every person who shall be

a candidate to be appointed to serve as a Surgeon or a Surgeon’s mate,

of any regiment, troop, company, hospital or garrison of soldiers in the

service of his Majesty, his heirs or successors, in like manner as they

do or shall examine any Surgeon or Surgeons to be appointed to serve on

board any ship or vessel in the service of his Majesty, his heirs or

successors.”

By section 3, (_see Appendix_, p. 39,) the College is empowered to hold

Courts and Assemblies and to make By-laws, Ordinances, Rules, and

Constitutions for the government of the Corporation, and those of the

united Company concerning Surgery are declared to be in force till

repealed. (§ 4. p. 40). By section 11 (_see Appendix_, p. 45,) it is

provided that nothing contained in the Act shall abridge or infringe any

of the privileges, authorities, &c. of the College of Physicians.

These are the Acts of Parliament which at present regulate the

profession of a Surgeon; it is evident that they are imperfect, as they

do not give any power to restrain and punish ignorant pretenders, who

without the slightest qualification assume this dangerous and difficult

branch of practice, and most especially in the country. We are aware

that any attempt of the medical Corporations to obtain an increase of

their power, would create much outcry among those who are interested in

the perpetuation of existing abuses; but we will hope that the public

safety will be preferred to the private views of empirics; and that a

due system of examination, license, and restriction of surgical practice

throughout England, will shortly receive the sanction of the

legislature.

We have only found one reported case of any consequence in which the

College of Surgeons have been parties. In _Rex v. the Master and Wardens

of the Company of Surgeons in London_, it was determined that a By-law

requiring apprentices to have a competent knowledge of the Latin

language, is good and reasonable; (_see_ 2 _Bur._ 892. _and Appendix_).

Continual attempts have been made to decry the value of classical

attainment in the medical professor; the legal authorities however agree

that the Corporations have the right of prescribing a due course of

education as a necessary preliminary to admission; and we sincerely hope

that these learned bodies will never abandon this principle, that none

shall be admitted to the higher honors of their profession, who are not

possessed of the ordinary acquirements of gentlemen.

In the year 1800 the Surgeons of London obtained a new Charter from his

late Majesty, which after reciting the previous Charters and Acts of

Parliament which we have noticed, proceeds thus: “And whereas we are

informed that the said Corporation of Master Governors and Commonalty of

the art and science of Surgeons of London, hath become and now is

dissolved,” &c. therefore His Majesty was pleased to incorporate the

members of the late Company, and all such persons who, since the

dissolution thereof, have obtained Letters Testimonial, &c. and

confirmed to such new Corporation all gifts, grants, liberties,

privileges, and immunities, possessions real and personal, &c. granted

or confirmed by any previous Charter or Act of Parliament.

We confess ourselves at a loss to trace either the mode or date of the

alleged dissolution; the Act of the 18th _Geo._ 2. is explicit as to the

creation of a College of Surgeons, and we consequently find them

recognised in the character of a Corporation in the cited case _Rex v.

the Master and Wardens_ (_Appendix_ p. 153), which was tried in the 33d

of _Geo._ 2.; but as the College have themselves admitted the fact, we

must take it for granted that the recital is correct; how far the

Charter of _Geo._ 3. unconfirmed by an Act of Parliament can revive

their ancient rights may be a most material question; but as we are of

opinion that the rights of this body should rather be increased than

diminished we do not at present enter into it, in the hope that the

defect, if it exist, will be shortly remedied by the Legislature.[119].

3. OF THE SOCIETY OF APOTHECARIES.[120]

In 1666 the Apothecaries and Grocers were united in one Company by

Charter of the 4th of _James_ the First, but this union did not long

continue, for in 1615, by Charter of the 13th of the same king,[121] the

Companies were again separated (see _Goodall_’s collect. p. 119.

_Appendix_ 71.) This was done upon the representation of some of the

Apothecaries, backed by the approval of Doctors _Mayerne_ and _Atkins_,

then the King’s physicians, by whose interest and solicitation this new

Charter appears to have been obtained. The Letters Patent, after

reciting the Charter of the 4th of the King, and that many empirics and

ignorant persons had taken upon themselves the art and mystery of

Pharmacoplists, compounding hurtful, corrupt and pernicious drugs,

declared that the Apothecaries of and within seven miles compass of the

City of London should thenceforth be separated from the Grocers, and be

made a Corporation, under the names of the Master, Wardens and Society

of the art and mystery of Pharmacopolists in London, to sue and be sued

as other Corporations; to have a common seal, and power to purchase and

hold lands in fee simple or for years. To be subject however to the

magistracy of the City of London, as other City companies. None but

natural born subjects to be members. The Company or Society is enabled

to elect a Master, two Wardens, and twenty-one Assistants, in the manner

prescribed, to have a hall or council house, to keep a court or

convocation to consult on statutes, laws, articles, &c. The power of

making By-Laws for the government of the society is vested in the

Master, Wardens and Assistants, or thirteen of them (of whom the Master

must be one), on public summons; provided however that in all orders

concerning medicines and their composition they should consult with the

President and Censors of the College of Physicians, or with some other

physicians named for that purpose by the President. They have power to

punish by fines and amercements to the use of the Company, without

giving account, but such fines must be moderate and not contrary to law.

The first Master (_Edm. Phillips_), Wardens and Assistants[122] are

named in the Letters Patents, with special direction as to the manner in

which they are to take their respective oaths of office, and the future

election of Master and Wardens is vested in the Assistants, who have

also the sole power of filling up vacancies in their own number, whether

caused by death, removal or otherwise; with power to administer the oath

of office, as well to every Master and Warden as to every newly elected

Assistant. No Grocer or other person whatsoever may keep an Apothecaries

shop for the compounding medicines, &c. till he have served seven years

apprenticeship to some Apothecary, nor can such Apprentice be made free

unless allowed by the President of the College of Physicians,[123] or

some Physician or Physicians deputed by him, who is or are to be present

at the examination by the Master and Wardens (if upon notice such

Physician or Physicians shall be unwilling to attend.) The Company have

power to enter the shops and houses of all persons following the mystery

of Apothecaries, both in the City and suburbs, to search and try

medicines, and to burn all unwholesome and hurtful medicines before the

doors of the delinquents, in which all civil officers are to give them

all necessary assistance; this power is however to be without prejudice

to the rights and privileges of the President of the College of

Physicians, who are to enjoy all powers and authorities as before[124],

and especially to have the same power in their searches to call the

Master and Wardens of the Apothecaries Company as of the Grocers.

Lastly, the practice of Surgeons is confirmed, so that they do not vend

medicines after the manner of Apothecaries.

This Charter was lately confirmed (except as therein altered) by Act of

Parliament, 55 _Geo._ 3. _c._ 194. By this Statute the Company’s former

power of search for unwholesome medicines is repealed, and in lieu

thereof the Master, Wardens and Society of Apothecaries, or any of the

Assistants, or any other person or persons properly qualified to be by

the Master and Wardens assigned, not being fewer in number than two,

shall, as often as to the said Master and Wardens may seem expedient,

enter in the day time, any shop of any person using the art and mystery

of an Apothecary in any part of _England_ or _Wales_, and search if the

medicines, simple or compound, Wares, Drugs, or any thing whatsoever

therein contained and belonging to the art or mystery of Apothecaries,

be wholsome, meet and fit for the cure, health, and ease of his

Majesty’s subjects; and all and every such medicines, wares, drugs, and

all other things belonging to the aforesaid art, which they shall find

false, unlawful, deceitful, stale, unwholsome, corrupt, pernicious or

hurtful, shall and may burn, or otherwise destroy, reporting the name of

the offender to the Master, Warden and Assistants, who may impose and

levy on such person the following fines; for the first offence five

pounds, for the second offence ten pounds, and for the third and every

other offence the sum of twenty pounds. No person to be nominated to

search drugs, or chosen to the Court of Examiners within the City of

London, or thirty miles of the same, unless he be a member of the

Society of Apothecaries, of not less than ten years standing; nor in any

other part of England and Wales, or to be one of the five Apothecaries

hereinafter mentioned, except he shall have been an Apothecary in actual

practice for not less than ten years previously to his being so

nominated or appointed. “And whereas, it is the duty of every Person

using or exercising the art and mystery of an apothecary, to prepare

with exactness and to dispense such medicines as may be directed for the

sick by any Physician, lawfully licensed to practise Physic by the

President and Commonalty of the Faculty of Physic in London, or by

either of the two Universities of Oxford or Cambridge; therefore” if any

person using the mystery of an Apothecary shall refuse to compound or

administer or deliberately or negligently, falsely or unfaithfully mix,

compound, or administer any medicines ordered by any lawful Physician by

any prescription signed with his initials, such person on complaint made

within twenty-one days by such Physician,[125] and upon conviction of

such offence before any of his Majesty’s Justices of the Peace, unless

such offender can shew some satisfactory reason, excuse, or

justification in this behalf, forfeit for the first offence five pounds,

for the second offence ten pounds, and for the third offence he shall

forfeit his certificate, and be rendered incapable in future of using

the art and mystery of an apothecary and shall be deemed incapable of

receiving any fresh certificate until he shall faithfully promise and

undertake and give good and sufficient security, that he will not in

future be guilty of the like offence.[126] The Master and Wardens may

from time to time appoint deputies to act for them. The Master, Wardens,

and Society of Apothecaries are appointed to carry this act into

execution throughout England and Wales, but no act of the Master,

Wardens, &c. shall be valid (except the search of drugs, &c. as before

mentioned, the acts of the Court of Examiners, and of the five

Apothecaries hereinafter mentioned) unless the same be done at some

meeting to be holden in the hall of the Society. The powers granted to

the Master, Wardens and Society, to be exercised by the Master, Wardens

and Assistants for the time being, or the major part of them present;

the number present at such assemblies not to be less than thirteen, of

which the Master must be one. Twelve persons properly qualified shall be

chosen and appointed by the Master, Wardens and Assistants (who may also

remove or displace them from time to time as they may deem advisable)

and such twelve persons, or any seven of them, shall be and be called

the Court of Examiners of the Society of Apothecaries and shall have

full power to examine all Apothecaries and Assistants to Apothecaries

throughout England and Wales, and to grant or refuse certificates; this

Court is to meet once a week at the Halls, a chairman to be appointed

who in case of equality (his own vote included) shall have a casting

vote. The Master, Wardens or Court of Assistants are to administer a

prescribed oath of office[127] to the Examiners. The Examiners remain in

office one year (except in cases of removal) and may be reappointed; in

case of death the successor remains in office only to such time as his

predecessor would have done. After the fifth of August, 1815, it shall

not be lawful for any person (except persons already in practice) to

practise as an Apothecary in any part of England or Wales, unless he

shall have been examined by the said Court of Examiners and have

received a certificate of his being duly qualified to practise as such;

no person to be admitted to examination until he shall have attained the

full age of twenty-one years, nor unless he shall have served an

apprenticeship of not less than five years to an Apothecary and shall

produce testimonials to the satisfaction of the Court of Examiners, of a

sufficient medical education and of a good moral conduct. Persons

intending to qualify are to give notice to the Clerk. It shall not be

lawful for any person (except persons then acting as Assistants and

except persons who have actually served an apprenticeship of five

years[128] to an Apothecary) to act as Assistant to any Apothecary in

compounding or dispensing medicines without undergoing an examination by

the Court of Examiners (or by five Apothecaries hereinafter mentioned)

and obtaining a certificate of his qualifications. The Master and

Wardens or Court of Examiners may from time to time appoint Five

Apothecaries[129] in any county throughout England and Wales (except

within the city of London and thirty miles circuit) to act for such

county in examining Apothecaries and their Assistants, for which purpose

they shall hold monthly meetings in the county town, three to be a

quorum and the Chairman in case of equality to have a casting vote. The

sums to be paid for Certificates to be as follows; Ten pounds ten

shillings to be paid to the Master, Wardens, &c. for Certificate to

practise within London or ten miles circuit, and Six pounds six

shillings for any other part of England or Wales, in which case the

Certificate may be afterwards enlarged to London, &c. on payment of Four

pounds four shillings. Any person practising (except persons in actual

practice as before mentioned) without a Certificate shall for every such

offence forfeit Twenty pounds, and Assistants (except as aforesaid) Five

pounds. And no Apothecary shall be allowed to recover any charges

claimed by him in any court of law, unless he shall prove that he was in

practice on or before the first of August 1815, or that he has obtained

his Certificate. Persons refused a Certificate to practise may apply

again.[130] The Master, Wardens, &c. are to publish an annual list of

all persons who in that year have obtained Certificates. The monies

arising from Certificates to be at the disposal of the Master, Wardens,

&c.; the penalties, one half to the informer and one half to the Master,

Wardens, &c. Fines and penalties above Five pounds to be recovered by

action at law in the name of the Master, Wardens and Society of the art

and mystery of Apothecaries of the city of London; and if the fine or

penalty be less than Five pounds, then the same shall be levied by

distress warrant under the hand and seal of any Justice of the Peace

acting for the city, county, town, or place where the offence was

committed; and the distress is not to be held unlawful for want of

forms. But this act is not to affect chemists or druggists,[131] nor in

any way to interfere with, lessen, prejudice or defeat any of the

rights, authorities, privileges and immunities of the two Universities

of Oxford and Cambridge, the Royal College of Physicians, the Royal

College of Surgeons, or the said Society of Apothecaries. Actions

against any Corporation for any thing done under this act to be brought

within six months, and in the county in which the dispute shall arise;

defendants may plead the general issue. The jury shall find for the

defendants if such action have been brought without twenty-one days

notice, and on verdict for the defendants or the plaintiff suffering

discontinuance or nonsuit, they the defendants shall have double costs.

This act to be deemed a public act.

Such is the general outline of the act under which the Society of

Apothecaries have obtained a very considerable addition to their ancient

powers (for the act itself we refer the reader to the _Appendix_); we

are convinced that much public benefit may arise from a diligent use and

exertion of these authorities, and from what we know of the parties now

entrusted with them, we do not anticipate any evil from the mode or

motives of their execution.

We do not think it necessary to enter into the details of the By-laws of

this Society, nor into their character as a trading Corporation; we may

however remark that the quality of the medicines supplied by them to the

Navy and East India Company, has been very generally approved; too much

care cannot be taken to secure the purity and propriety of the

assortments exported for the use of our gallant defenders; nor is there

any good reason why the army should not be supplied under the same or a

similar system; we do not mean that the Apothecaries Company should have

an absolute monopoly of medicines for the public service, for such a

grant would defeat the end proposed, but if under a fair and open

competition they can furnish the necessary supplies of an equal quality

and price with their rivals in trade, there are reasons of public

expediency which would turn the scale in favor of a fixed and permanent

Corporation, in preference to the individuals however respectable, whose

trading may be more subject to accidents and vacillations.

We must not conclude our account of the Society of Apothecaries, without

noticing the splendid botanic garden at Chelsea, which, for a period of

a century and a half, they have possessed and carefully maintained: and

it is worthy of remark, that this is the only depository of exotic and

indigenous plants, in the vicinity of the metropolis, which belongs to

any public body. From the account of this establishment by Mr.

Field,[132] its early history appears to be involved in considerable

obscurity; the company however were mere lessees of the ground, until

the fee and inheritance of the estate, together with the manor of

Chelsea, was purchased from Lord Cheyne by Sir Hans Sloane; when this

distinguished naturalist and physician, by deed, containing certain

covenants[133] hereafter mentioned, gave the society full possession of,

and a permanent interest in, the garden. The society do not appear to

have been insensible to the liberal conduct of Sir Hans Sloane; a marble

statue of their benefactor, executed by Michael Ryebrach, at the cost of

£250, was erected by them in 1737, and it remains as a lasting memorial

of his munificence, and of their gratitude.

4 OF THE EXEMPTIONS AND LIABILITIES OF MEDICAL PRACTITIONERS.

Physicians, Surgeons, and Apothecaries have been exempted from the

performance of various civil duties by several Acts and Charters, and

those exemptions which were at first limited, have by custom become so

general, that they may now be considered as legally established.

By the 14 and 15 _Hen._ 8. _c._ 5. that part of the Charter of the

College of Physicians, which exempts them from being summoned to or

placed on any assizes, juries, inquests, inquisitions, attaints, _et

aliis recognitionibus_, even in pursuance of the King’s writ, is

confirmed by Statute; and by the 32 _Hen._ 8. _c._ 40. they, and as it

may appear the Licenciates also, (under the name of Commons,) are

discharged from keeping watch and ward, from serving the office of

constable,[135] or any other office within the city of London and the

suburbs, any order, custom or law to the contrary notwithstanding.[136]

The Corporation of the city of London, however, appear to have been

unwilling to acquiesce in these exemptions, grounding themselves

probably on their own Charters and Privileges, and on the reservation of

their rights in the concluding clause of the Charter of the College. We

find, therefore, that the members of the College were frequently

harassed by being elected to parochial offices, and being called upon to

find arms, and to keep watch and ward.

In 1588, “Being then a time of most imminent and public danger, the Lord

Mayor of _London_ and Court of Aldermen charged the College with arms,

whereupon they applied themselves to Queen _Elizabeth_ and her Council;

upon which Secretary _Walsingham_ wrote a letter to the Lord Mayor and

Aldermen of London, that they should no more trouble the College, but

permit them to live quietly, and free from that charge. After this they

met with no further trouble or molestation till the reign of King

_James_; at which time the College being charged with arms, Sir _William

Paddy_ pleaded their privilege before Sir _Thomas Middleton_, Lord

Mayor, and a full Court of Aldermen, and Sir _Henry Montague_,

Recorder.” “The Recorder then perusing every branch of the Statutes

recited by Sir _William Paddy_, with the reasons by him urged; and

opening every part thereof at large, did conclude, that the Act of

Parliament did extend to give the College as much immunity as in any

sort to the Chirurgeons. Hereupon the Court desired a list of the

members of the College, which was immediately given them, and an order

entered for a dispensation to the College from bearing of arms; and also

a precept was then awarded by the Mayor and Court, to commit all other

Physicians or Surgeons, refusing to bear or find arms, who were not of

the College allowed, or Chirurgeons licensed according to form.”

“About three years after this debate, King _James_ granted the College

his Royal Charter, wherein he confirms all former statutes and patents

given them by his royal progenitors, and therein granted, To all and

every Physician of the College to be wholly and absolutely free from

providing or bearing of any armour or other munition, &c. any act or

statute to the contrary notwithstanding.”

_Charles_ the Second also by his Charter granted the same exemptions in

very full terms, and sent a letter to the Lord Mayor of London (for

which see _Appendix_) commanding the observance of these privileges.

“Thus by the especial grace and favour of the Kings and Queens of

_England_, the College of Physicians have been freed from bearing and

providing arms: and though some particular member may of late have been

summoned upon that account by the Lieutenancy, yet upon producing his

Majesty’s patent and asserting his Sovereign’s natural right in

dispensing with a Corporation of men from bearing and providing arms,

which was an inherent prerogative in the Crown; and therefore an Act of

Parliament was made in 13 _Car._ 2. 6. positively declaring, That the

sole and supreme power, government, command and disposition of all the

Militia, and of all forces by sea and land, &c. is, and by the laws of

_England_ ever was, the undoubted right of his Majesty and his royal

predecessors, they were freed from any further trouble. An instance of

which we lately had in the case of Dr. _Newell_, then candidate of the

College of Physicians; who, anno 1680, was summoned to appear before the

Lieutenancy of _London_ for not bearing and providing arms. Upon which

summons, attending with the Patent 15 _Car. Secundi Regis nunc_.” The

Lieutenancy on debate desired a copy of the exempting part of the

patent, that they might consult with their counsel. On the next

committee-day they told him they were satisfied that the words of the

Patent were sufficient to exempt the members of the College from bearing

and providing arms, and desired that a list of them might be given in

under the College Seal, which was accordingly done.

Sir _Francis Pemberton_, Sir _Edmund Saunders_, and Mr. _Holt_, lawyers

of whose celebrity it is unnecessary to speak, being consulted on the

same point, answered.

Sir _F. P._ I conceive his Majesty may, by his Patent, excuse the

College from finding arms if he think fit.

Sir _E. S._ The Patent doth discharge the Physicians from bearing or

providing of arms, notwithstanding the Militia Act.

Mr. _H._ I conceive by the Patent all the members of the College are

exempted from being at any charge towards the Militia.

But in the case of _Sir Hans Sloane_ against Lord _William Pawlett_,

Lord Chief Justice _Parker_ was of opinion, that the King by his

prerogative could not dispense with an Act of Parliament which was made

for the public good of the whole nation; “but admitting that he could

exempt them (the Physicians) from personal duties, yet it cannot be

inferred from thence, that he might exempt them from being contributory

to others to perform those duties which are required by an Act of

Parliament, especially where the subject has an interest that such

duties should be performed, or a loss if they should not; and the better

opinion seemed to be that the King could not exempt in such cases. That

in the principal case, the contribution to be made to the finding a man

with arms to serve in THE MILITIA, is a charge upon the lands, as well

as on the persons of the owners; and if this charter of exemption should

be good, it would encrease the charge on all the lands of persons not

exempted, which would be a very great damage to such persons, because

the physicians who are exempted are a considerable body of men in every

county, for which reason it would be very hard if the King had power to

lessen the tax imposed upon one man, and charge it on another. Besides

the King cannot exempt in any case where the subject has an interest.”

(See 8 _Mod._ p. 11.) Therefore when it is intended to exempt Medical

practitioners from the burthen of any Militia Act, it is necessary that

they should be specifically mentioned.

OF ACTIONS BY MEDICAL PRACTITIONERS.

A Physician cannot maintain an action for his fees, for they are

honorary, and not demandable of right; “and it is much more for the

credit and rank of that body, (the physicians) and perhaps for their

benefit also that they should be so considered; and I much doubt, says

Lord _Kenyon_, whether they themselves would not altogether disclaim

such a right, as would place them upon a less respectable footing in

society, than that which they at present hold.” _Chorley_ against

_Bolcot_, 4 T. R. 317, _see Appendix_. It was contended in this case,

that there was no authority in the books for placing physicians and

barristers fees[137] on the same footing; the regulation with regard to

barristers being founded on grounds of public policy, as appears by a

passage in Tacitus to which Mr. Justice _Blackstone_ refers; in which

passage it is taken for granted that Medici[138] were entitled to a

remuneration, because their situation was dissimilar to that of

advocates.[139]

But though a physician cannot recover his fees by process of law, yet

_pro concilio impenso et impendendo_ is a good and valuable

consideration for an annuity; (9 Co. Rep. 50: 7 Co. Rep. 10. 28.) And

this was formerly a very frequent mode of remuneration for professional

services both in law and physic, though at the present day it does not

frequently occur.

If a bond, bill, or note were given for medical attendance, the

consideration would be good, though the original fees could not have

been recovered. A distinction might we think be drawn between the fees

of a physician and his travelling expenses, which are frequently

considerable; but the case of _Chorley_ and _Bolcot_, before cited, is

against it.

If a medical practitioner passes himself off as a physician, (by no

means an unfrequent practice in distant parts of the country) although

he has no diploma, and no right to assume that character, he cannot

maintain an action for his fees. _Lipscombe v. Holmes_, 2 _Camp._ 441.

_see Appendix_. Though as a surgeon he might have recovered

compensation: and even if he were no regular surgeon, the doctrine in

_Gremare v. Le Clerc Bois Valor_, 2 _Camp._ 144. would entitle him to

recover in an action of assumpsit. But query the authority of this

case.[140]

If there be any promise, a physician may receive on a _quantum meruit,

Shepherd v. Edwards_; _Hill_ 11. _Jac._ 2. _Croke_ 370. In this case the

plaintiff declared that he being a professor of physic and surgery had

cured the defendant of a fistula and he had judgment. All physicians may

practise surgery; (32 _Hen._ 8.) though surgeons may not encroach in

physic; therefore query whether in this case the plaintiff did not sue

as a surgeon; and the disease was one which in this day would clearly be

classed as a surgical case. It was not so however in _Dale_ against

_Copping_, (_Bulst. part_ 1. _p._ 39) when the promise of an infant to

pay a certain sum to the defendant for curing him of the falling

sickness was held binding, “for that this shall be taken as a contract,

and that to be for a thing in the nature of necessity to be done for

him, and the same as necessary as if it had been a promise by him made

for his meat, drink, or apparel, and in all such cases his promise is

good and shall bind him.”

OF ACTIONS AGAINST MEDICAL PRACTITIONERS.

If a Physician, Surgeon, Apothecary, or other medical practitioner,

undertakes the cure of any wound or disease, and by neglect or ignorance

the party is not cured, or suffers materially in his health, such

medical attendant is liable to damages in an action of trespass on the

case: but the person must be a _common Surgeon_[141], or one who makes

public profession of such business, as surgeon, apothecary, &c. for

otherwise it was the plaintiff’s own folly to trust to an unskilful

person, unless such person _expressly_ undertook the cure, and then the

action may be maintained against him also. _See Bull. N. P. p._ 73; 2

_Esp. N. P. p._ 601.

“And it seems that any deviation from the established mode of practice,

shall be deemed sufficient to charge the Surgeon, &c. in case of any

injury arising to the patient.” _See Slater_ v. _Baker and Stapleton_. 2

_Wils._ 359. which was a special action on the case against a Surgeon

and an Apothecary, for unskilfully disuniting the callous of the

plaintiff’s leg after it was set, (_see Appendix, p._ 189) which it

appears was done for the purpose of trying a new instrument. The

Plaintiff recovered 500_l._ against the Defendants jointly, and the

Chief Justice said he was well satisfied with the verdict. On a motion

for a new trial, the judgment was affirmed by the whole Court.

In _Seare_ against _Prentice_, 8 _East. R._ 348. it was determined that

this action lies against a Surgeon for gross ignorance and want of skill

in his profession, as well as for negligence and carelessness, to the

detriment of a patient; though if the evidence be of negligence only,

which was properly left to the jury, and negatived by them; the Court

will not grant a new trial, because the jury were directed that want of

skill alone would not sustain the action. _See Appendix, p._ 194.

In the case of _Neale_ v. _Pettigrew_, a Surgeon was held responsible in

damages for the negligence and unskilfulness of his apprentice or

servant[142].

Though the cited cases are surgical, there is no doubt that similar

actions would be maintainable against Physicians or other medical

practitioners; but as internal injuries are less demonstrable than

external, there might be some difficulty in obtaining the necessary

evidence. We shall treat in another place of the criminal responsibility

of persons undertaking cures in cases where death ensues from their

mal-practice.

MIDWIFERY.

“In former times the necessity of Baptism to new born infants was so

rigorously taught, that for this reason they allowed lay people and even

women, to baptize the declining child, where a priest could not be

immediately found; so fondly superstitious in this matter, that in hard

labours the head of the infant was sometimes baptized before the whole

delivery; this office of baptizing in such cases of necessity was

commonly performed by the midwife; and tis very probable, this gave

first occasion to midwives being licensed by the bishop, because they

were to be first examined by the bishop or his delegated officer,

whether they could repeat the form of baptism which they were in haste

to administer upon such extraordinary occasions. But we thank God our

times are reformed in sense and in religion.” (_Watson’s Cler. Law, c._

31, _p._ 318.) The concluding sentence appears to be somewhat ill

placed, for a few lines before the reverend author says, “And _Note_,

that a child baptized with water in the name of the Father and of the

Son, and of the Holy Ghost, is sufficiently baptized, although not

baptized by a lawful priest, as may be collected from the Rubrick; and

so it is if the child be baptized by other form, yet the person

baptizing not being a lawful priest is punishable, like as a lawful

priest baptizing by other form than is set down by the Book of Common

Prayer is punishable;” and a few lines after, he says, that a Clergyman

“ought not to bury the corps of any person dying unbaptized:” surely if

the baptism of a child by a lay person is good, and the body cannot have

Christian Burial without it, there is nothing senseless or irreligious,

and we will venture to add nothing morally or legally wrong, in the

performance of this provisional ceremony. If there were no other object

than to satisfy the anxiety of the mother at a moment when the calmness

of her feelings is vitally important, it ought not to be omitted

whenever the danger of the child and the absence of a priest appear to

render it necessary.

_Burn_ says, “By several constitutions, the minister was required

frequently to instruct the people, in the form of words to be used in

such cases of necessity,” (2 _Burn’s Ecc. Law_, p. 469,) and the oath

administered by the bishops to licensed midwives, (_See Appx._ 160,)

though, it does not command, implies that baptism may be administered by

other than a priest. “You shall not be privy, or consent that any priest

or _other_ party shall in your absence or in your company, or of your

knowledge or sufferance baptize any child by any mass, latin service or

prayers, than such as are appointed by the laws of the Church of

England:” here the prohibition is to the form not the person.

Whatever may have been the origin of the bishop’s license, his

jurisdiction does not appear to have been sanctioned by the law. “If

there be a suit in the Spiritual Court against a woman for exercising

the trade of a midwife without license of the Ordinary, against the

Canons, a prohibition lieth: for this is not any spiritual function, of

which they have cognisance. _Buskin_ and _Cripes_, Tr. 9, Ch. BR and a

prohibition was granted accordingly.” (2 _Roll Abr._ 286. 2 _Burn, Ecc.

Law, Tit. Midwife_.)

In the reign of Charles the first, a Doctor of Physic attempted a

project to procure the sole and absolute power, either to license or

approve of all the midwives practising in and about _London_, before

their admittance; they presented a petition to the President and College

of Physicians, (for which see Goodall’s Pro. 463,) in which it appears

that a petition on the same subject having been presented to the King,

his Majesty referred the same to the Lord Archbishop of Canterbury and

Bishop of London, in whose jurisdictions and by whose authority, it is

stated, that they had always been licensed; the object of the petition

to the College, was to obtain their certificate of the competent skill

of the petitioners, for which purpose they alleged that other practisers

in midwifery had been examined upon the like occasion, by command from

King James; the physicians by their answer, (_for which see Appendix_)

discouraged the scheme of the would-be licencer, and the matter

thereupon appears to have been dropped.

We have before noticed, that there is some probability that both the

College of Physicians and the College of Surgeons will decline all

future interference with this branch; if so, it will be necessary that

some new authority should be instituted for the purpose of examining and

licensing candidates for practice; the duty to be performed is by far

too dangerous and delicate to be left to the hands of any who would

assume it; yet such is at present the case, and not without fatal

examples of the errors and imperfections of our lego-medical system.

We do not of course include in this censure, the private Institutions

for the instruction of midwives, in which the want of a public provision

is endeavoured to be compensated; but the operation of such societies

must be of necessity very limited and utterly inadequate, not only to

the demands of the empire, but to the magnitude of the metropolis.

OF THE PRESERVATION OF PUBLIC HEALTH.

There is not in England, as in most countries of the continent, a

separate code or system of laws for the preservation of the public

health; actual nuisances, of which we shall treat under a separate head,

are provided against by liability to indictment or action at the

information or suit of the parties immediately interested; but except in

the enforcement of the Quarantine laws for the prevention of foreign

infection, the executive government takes little or no part in securing

the bodily health of its subjects. The habits of order and cleanliness,

for which the inhabitants of our island are celebrated, and the general

salubrity of our climate, may have rendered such care less necessary;

while our spirit of liberty and independence might have resisted the

encroachments on domestic privacy, and the perpetual intrusion of local

authorities, to which our neighbours are subjected. Except in extreme

cases we are far from wishing any change; but as there are situations

and circumstances, in populous towns, among the lowest order of the

people, and in times of contagious or epidemic sickness, in which

absolute apathy may be attended with danger, we may be allowed to hint

that some prospective enactment would be more politic, than to be

obliged to legislate for the evil when its mischiefs had been

accomplished. This has been already done as respects Ireland by the

statute 59th _Geo._ 3. _c._ 41. (_see Appendix_,) by which it is enacted

that Officers of Health should be appointed annually, at vestries of the

inhabitants in every city and large town, where the Lord Lieutenant or

chief Governor shall think fit to direct.[143] Something of this kind

might be advantageously extended to the whole of the United Kingdom.

In former times, however, when from the comparatively uncultivated state

of the people, contagious diseases were more common, there were several

laws and regulations on this head, which have now fallen into disuse.

Many cities have still some relics of their Lazar-house, situated at

some distance without the walls;[144] and there was also an ancient writ

_De Leproso amovendo_, to remove a leper or lazar who thrust himself

into the company of his neighbours in any parish, either in the church,

or at other public meetings, to their annoyance. _Reg. Orig._ 237. By

the 1st _James, c._ 31. (now expired) it was made felony if any one

having a Plague sore running upon him goes abroad, 1 _Hale, P. C._

432.[145] And to this day it is an indictable offence for any person to

pass through the streets, or cause others to pass through the streets,

even for medical advice, while they have the Smallpox upon them.[146]

Previous to the important discovery of Vaccination, this law would have

been attended with very considerable hardship; as it precluded the

patient from the best remedy for the disorder—exposure to fresh air; yet

there can be no doubt that in this as in all other cases, individual

interest must yield to general policy. Had the rule been more carefully

attended to, many of the pests to which human nature is subject, might

have been checked or even extirpated in the commencement of their

progress.

There is one disorder, to check the propagation of which has been

singularly neglected, under the curious pretence that any regulation

would be an encouragement to immorality; we cannot assent to the

validity of this objection, and think that we should find little

difficulty in refuting it. But the disease is undoubtedly on the decline

both as to its frequency and its virulence.[147] The superior mode of

medical treatment, by which many cases are arrested in the earliest

stage, may have tended greatly to this effect; but we are inclined to

attach yet greater importance to a change of habit in the upper and

middle classes of society. The mode of life handed down to us by the

poets, dramatists, novelists, and essayists from _Charles_ to _George_

the second, unhappily confirmed by the criminal records of the same

period, has no existence in modern manners: drunkenness is no longer a

fashionable vice; the tavern parties, which even _Addison_ did not blush

to describe, no longer disgrace us. From these social improvements, and

from increased habits of cleanliness, we may deduce the milder form and

more unfrequent occurrence of the disease, which poisons human life at

its source. Still we feel some astonishment that the change has not been

forwarded by a measure of the police; for though a Parisian system might

savour somewhat too much of our own ancient abuses,[148] yet it would

neither be difficult or immoral for the magistrates, when they

occasionally clear the streets for the night, to order the detention of

those whose liberty might, on surgical examination, prove dangerous to

the unwary; _obsta principiis_ is as good a maxim in law as in physic.

One Surgeon attached to each police office, for this, and other evident

purposes, would be materially useful and not considerably expensive.

We have observed in another place[149] on the attention necessary to be

directed to prison discipline, as it respects the health of criminal or

unfortunate prisoners; but the subject is so much before the public on

this and other points, that we do not think it necessary to enlarge upon

it here. It is not so, however, in other cases to which legislative

attention might be advantageously directed. Sir _Robert Peel’s_ Bill for

regulating the working hours of children in the cotton factories, might

in some of its enactments be safely extended to many other branches of

trade, more especially when contagious diseases are found to exist in

large collections of people confined to a very small space. This

observation applies also to infectious diseases breaking out in schools;

at present the discretion of the master is the only security to the

public: in the higher class we have no doubt that this discretion is

well exercised; but there are others where, gain being the only object,

the speculator will rather risk the lives of the unfortunate children

committed to his charge, than the chance of their being permanently

removed from his precarious protection.[150]

We are well aware that any adequate remedy for these evils would require

the most serious attention of the most experienced ability; but because

the task is difficult, we do not think it impracticable; and where human

life, in its most interesting and useful forms is at stake, we are

assured that labour, however thankless in its outset, will ultimately

meet its reward in the approval of society.

Having thus ventured to suggest some measures which seem calculated to

secure and promote the public health, we may be allowed to glance at the

impolicy of any tax which has a tendency to deprive the lower orders of

those articles which are essential to it; the salt duties immediately

suggest themselves as a lamentable instance of such impolicy: salt is to

the poor an indispensable part of their diet; it is essential to their

bodily health, to the preservation or composition of bread, butter,

cheese, meat, fish, and almost every article of their food, and its

utility is always greater in proportion to the scantiness, and nutritive

deficiency of their diet.[151]

The importance of cleanliness in cities, and of purity in the waters by

which they are supplied, will more properly fall under consideration in

another division of our subject; but we may here generally observe, that

no circumstance contributes in a greater degree to the public health

than an attention to this branch of medical jurisprudence. The

deleterious influence of stagnant waters is too apparent to admit

controversy, in which are to be included moats, where the water has no

motion, and meadows which are occasionally overflowed; it has

accordingly been the policy of every enlightened country to provide

adequate resources for its drainage, and those liberal individuals who

have encouraged the plans for its accomplishment have ever been

distinguished by the gratitude of the people. It has been conjectured,

and not without probability, that the patriotism of _Marcus Curtius_ is

thus handed down to us in a figurative allusion, and that he probably

filled up, at his own cost, some stagnant pools which affected the

health of his fellow citizens. _Empedocles_, a disciple of _Pythagoras_,

delivered the Salentines from the dangerous exhalations with which they

were infested, by conducting two neighbouring rivers through their

marshes, by which the stagnant waters were carried off; the air was

therefore no longer infected, and the diseases which had flowed from

this source immediately subsided. In ancient Rome, the physical evils

which have since so materially contributed to deprive it of its former

salubrity and splendour, were obviated by magnificent aqueducts.

The slaughtering of cattle is another very important object in relation

to the public health of a great city, and we cannot but wish that some

police regulations were established that might mitigate the serious

evils so often experienced from this circumstance, in most of the large

towns of the British empire.

There still remains to be noticed one practice connected with the public

health, that requires some animadversion from the medical jurist—THE

BURIAL OF THE DEAD IN THE MIDST OF POPULOUS TOWNS AND CITIES.—It is

certainly extraordinary that a country which has long abjured the errors

of the church of Rome, should still retain one of its most absurd

superstitions, yet such is the fact in England, as it respects the

Burial of the Dead in churches, and church-yards, and in cemeteries,

situated in the very heart of our most populous cities.[152] If the

health of the people be a primary object of legislation, there is no

point which in the present advanced state of population calls more

imperiously for its interference; the cemeteries of the metropolis are

so crowded[153] that it becomes more difficult to find room for the dead

than the living, and yet free as we boast ourselves to be from the

prejudices and superstitions of our ancestors, we question whether there

is any point upon which more popular clamour would be raised than that

of changing the system of burial. It is difficult, in the first place,

to overcome those feelings which originate in a principle amiable and

useful in itself, however mistaken it may be in its practical

applications. Nature appears to have implanted in all mankind a

sentiment of veneration for the mortal remains of those whom living we

have loved or respected; every nation, whether civilized or barbarous,

has accordingly invented and practised some ceremony,[154] generally of

a religious character, in the final disposal of the human corpse; it is

however the duty of the state to guard the living from those evils to

which an ill applied respect for the dead may be likely to subject them.

Although we are disposed to admit with _Diemerbroeck_[155] and Dr.

_Bancroft_,[156] that the effluvia which issue from putrefying human

bodies are not capable of generating the specific contagious matter of

Plague, Typhus, or any true pestilential fever, yet, but little

reflection is necessary to lead any reasoning mind to the conclusion,

that in the decomposition of the human body various noxious principles

are developed highly injurious to human life. Dr. _Bancroft_, in order

to establish his position respecting the non-pestilential nature of

these effluvia, relates two instances of extensive exhumations, which he

says furnish facts on so large a scale as completely, in his opinion, to

decide the question. The first relates to those made in the church-yard

of _St. Eloi_, at Dunkirk, in the year 1783; and the other to those made

three years afterwards, in the famous cemetrie of the _Saint Innocens_,

at Paris. As the operations and results were similar in both instances,

it will be sufficient if we describe only the latter. The church-yard of

the Saint Innocens, situated in one of the most populous quarters of the

city of Paris, had been made the depository of so many bodies, that,

although its area enclosed near two acres of ground, yet the soil had

been raised by them eight or ten feet higher than the level of the

adjoining streets: and upon the most moderate calculation, considerably

more than six hundred thousand bodies had been buried in it, during the

last six centuries: previous to which date, it was already a very

ancient burial ground;[157] numerous complaints having been made

concerning the offensive smells which arose from this spot, and had

penetrated into the houses, and the deleterious effects which such

emanations produced, having been described in a memoir read before the

Royal Academy of Sciences[158] in 1783, by _M. Cadet de Vaux_, who held

the useful office of _Inspecteur Général des objects de Salubrité_, the

Council of State decreed in 1785 that so much of the superstratum should

be removed as would reduce the surface to the level of the streets. This

work was accordingly undertaken in 1786, under the superintendance of

_M. Thouret_, a Physician of eminence in Paris,[159] and in two years he

accomplished it. It does not appear that any epidemic evils were

experienced from these extensive exhumations, but it must be remembered

that the great mass of bodies had been converted into a harmless and

inoffensive substance resembling spermaceti, to which the name of

_Adipocire_[160] has been given; had this change not occurred, it is

more than probable that worse consequences would have been experienced

from this horrible accumulation: sufficient instances however occurred

to prove the dangerous tendency of the mephitic vapours[161] which were

emitted; grave-diggers were thrown down suddenly, and deprived of sense

and motion, upon breaking open, by their spades, the abdominal viscera;

these vapours also, in a more diffused state, produced nausea, loss of

appetite, and in the course of time, paleness of countenance, debility,

tremors, &c. If farther evidence be required upon this subject, we have

only to direct the reader’s attention to the effects occasioned by

opening the graves in St. Dennis, and to which no allusion is made by

_Dr. Bancroft_: the National Convention in the year 1793, in the true

spirit of revolutionary ferocity, passed a decree upon the motion of

_Barrère_, that the monuments of the Kings in this, as well as in all

other places throughout France, should be destroyed. In carrying this

decree into effect, the bodies of many of the latter Bourbons were found

in a state of decomposition, and when the coffins were opened they are

said to have emitted a thick black vapour, which, although vinegar and

gunpowder were burnt to prevent ill consequences, affected the wretches

employed in this inhuman work with fevers and diarrhæas: so again when

the ground of the church of St. Benoit was dug up a few years ago, a

nauseous vapour was emitted, and several of the neighbours were affected

by it.[162]

We are nevertheless far from believing that such cadaverous impurities,

however unwholesome, are capable of generating the specific contagions

of Typhus, &c.; nor are we even inclined to assent to that general

opinion which supposes that putrid emanations from the bodies of persons

who have died of a pestilential disorder are capable of re-exciting the

disease, and we are fortified in this conclusion by the powerful

testimony of _Mr. Howard_.[163] We ought not, however, to omit to state,

that instances are on record, where the small-pox has suddenly appeared

in a village, after opening the grave of a person who had a few months

before fell a sacrifice to that disorder.

From the experiments and observations which have been made with respect

to the decomposition of animal bodies that are interred in

burying-grounds, it appears that they are, in such situations, subjected

to very different laws of decomposition, from those which take place in

bodies exposed to the open air. In the former case no danger can attend

the operation provided the body be buried at a sufficient depth, and

that the grave be not opened before its entire and complete

decomposition. The depth of the grave ought to be such that the external

air cannot penetrate it; that the juices with which the earth is

impregnated may be conveyed to its surface, and that the exhalations,

vapours, or gases, which are developed or formed by decomposition,

should not be capable of forcing the earthy covering which detains them.

The nature of the earth in which the grave is dug, influences all its

effects. If the stratum which covers the body be argillaceous, the depth

of the grave may be less, as this earth affords with difficulty a

passage to any gas or vapour; but, as a general rule it may be admitted,

that bodies should be buried at the depth of five feet, to prevent any

unpleasant consequences. It is also important to remember that the

decomposition of the soft parts, according to _Mr. Petit_, is not

terminated until the expiration of three years, in graves of four feet

deep; or four years when their depth is six feet. This term, of course,

is stated as a medium; it must necessarily vary according to the nature

of the soil, and the constitution of the subjects buried in it.